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CESTAT RULING

2010-TIOL-1155-CESTAT-DEL-LB

M/s Steel Authority Of India Ltd Vs CCE, Raipur (Dated: June 30, 2010)

Issue cannot be referred to Larger Bench on account of prima facie disagreement with the view taken by the Tribunal in the earlier orders: the stage to form such opinion, different from the one which had been formed in earlier decided case, can arise only upon hearing the parties on merits of the case. It cannot be merely a prima facie view which would justify reference of the matter to a Larger Bench. It will be totally contrary to the well established procedure regarding justice delivery system which expects co ntinuity and certainty in the decisions unless there is justifiable reason to take a contrary view on the identical issue.

No reference for opinion: Reference of matter to a Larger Bench cannot be merely to seek opinion of a Larger Bench on an issue on wh ich there is no difference of opinion. Besides, the difference of opinion can arise when the issue on which the Tribunal has already expressed its view but the Bench subsequently hearing a matter involving identical issue is unable to agree with the said view. The disagreement, however, should be substantiated by the reasons for the same.

Also see analysis of the Order

2010-TIOL-1153-CESTAT-MAD

M/s Ford India Pvt Ltd Vs CCE, Chennai (Dated: April 7, 2010)

Central Excise – Refund of duty paid on motor cars registered as taxis – Limitation – Refund claims rejected on the ground that they were filed beyond six months period from the date of payment of duty prescribed under the Notification – Statutory period of one year as provided under Section 11 B is applicable and the refund claims cannot be held to be barred by limitation.

2010-TIOL-1152-CESTAT-BANG

CCE & CC, Hyderabad Vs M/s Perfect Knitters Ltd (Dated: April 16, 2010)

Central Excise – Balance of CENVAT Credit lying in books as on date of availing exemption notification cannot be adjusted while sanctioning rebate claim without issue of show cause notice and a proper order for recovery – No merit in Revenue appeal

2010-TIOL-1149-CESTAT-MUM

M/s Lupin Ltd Vs CCE, Mumbai (Dated: July 26, 2010)

Higher duty paid on export goods calculated on the CIF value – Revenue was not right in reducing the rebate claim to the extent of duty payable on FOB value – re-credit taken of rejected rebate amount - prima facie applicability of LB decision in BDH Industries is in doubt - Stay granted.



M/s SRF Ltd Vs CCE, Chennai (Dated: May 17, 2010)

Central Excise – Stay / Dispensation of Pre -Deposit - Interest on differential duty payable subsequent to the clearance of goods – No prima facie case made out in view of Supreme Court decision in SKF case – Pre deposit ordered.

2010-TIOL-1147-CESTAT-AHM

M/s Claris Lifesciences Ltd Vs CCE, Ahmedabad (Dated: June 21, 2010)

Central Excise – 100% EOU – Once a measure of customs duty equivalent to excise duty is calculated for goods cleared to DTA, computation of education cess separately on such excise duty does not arise

2010-TIOL-1143-CESTAT-DEL

CCE, Chandigarh Vs M/s V K Agro & Allied Industries (Dated: April 13 2010)

Central Excise – Declaration filed by assessee working under compounded levy scheme before competent authority claiming furnace as ‘pusher type' and annual capacity/duty liability determined accordingly – Appellate Commissioner's finding that furnace was ‘batch type' based on assessees contention contrary to original declaration made by assessee before competent authority – Impugned order with findings contrary to materials on record, liable to be set aside


M/s Atlas Cycles (Haryana Ltd) Vs CCE, Indore (Dated: June 30, 2010)

Free bicycles of a model other than that supplied to dealer for sale cannot be considered as Trade discount but as advertising or sales promotion expenses

undertaken by the appellants to enrich the value of the goods – Duty to be paid on such bicycles offered free of charge to dealers – Appeal dismissed



M/s Sampat Aluminium Vs CCE, Ahmedabad (Dated: May 14, 2010)

Central Excise – Allegation of clandestine manufacture and clearance of aluminium ingots, coils, wires etc – Clearances to buyers who did not admit having received goods without payment of duty and related transporters not investigated thoroughly to establish clandestine removal – Justifies reduction in demand of duty and penalties – Appellant given option to pay duty demanded with interest and 25% of the duty amount towards penalty within 30 days from date of receipt of CESTAT order

2010-TIOL-1135-CESTAT-KOL

M/s Tinplate Company Of India Ltd Vs CCE, Jamshedpur (Dated: March 17, 2010)

Central Excise – Reversal of CENVAT credit on rejected inputs – When inputs are rejected after undergoing certain processes not amounting to manufacture and cleared under same tariff heading, actual credit availed to be reversed – No infirmity in impugned order – When statutory returns are filed periodically indicating clearances of impugned goods, demand invoking extended period not sustainable – Penalty imposed under Section 11AC liable to be set aside


CCE, Raipur Vs M/s Monnet Ispat & Energy Ltd (Dated: August 13, 2010)

Central Excise – Departmental appeal to Tribunal - Review by Committee of Chief Commissioners – Tribunal has power to condone delay in filing appeal: The Tribunal has ample power to condone the delay in filing the appeal including the one filed under section 35 E (4) of the said Act. The period which can be condoned in relation to filing of the appeal under section 35 E (4) of the said Act would include the period availed by the review committee in terms of section 35 E (1) or 35 E (2) of the said Act. As regards the appeals by the Department in terms of section 35 E (4), the same should be filed within one month from the date of communication of the order under sub-section (1) or sub-section (2) of the said section but not beyond four months from the date of communication of order of the adjudicating authority to the review committee. In case there is any delay in this regard, the same can be condoned in exercise of powers under section 35 B (5), on being satisfied about sufficient cause for such delay and power to condone the delay would include the period availed under section 35E (1) or (2) by the reviewing committee to decide about filing of the appeal.



M/s Maruti Suzuki India Ltd Vs CCE, Delhi (Dated: August 13, 2010)

Central Excise – Valuation – Transaction Value – Pre -delivery Inspection and after-sale-service charges collected by dealers to be included; The manufacturing of a product and the marketability thereof are inbuilt elements of the scheme of assessable value under Section 4: The expression 'transaction value' is the guiding principle in the process of ascertaining the assessable value of a product. The sale price, being paid or payable as the sole consideration, forms the base for the transaction value. Depending upon the fact situation relating to all the factors mentioned in said section 4 of the said Act, including the agreement and the arrangement arrived at between the manufacturer and the dealer or the agent in respect of sale of the product to the buyers, and the terms and the conditions thereof, the transaction value arrived at would lead to the quantification of the assessable value of the product, which in turn will determine the duty liability of the manufacturer. In the scheme of the said Act, there fore, the concept of transaction value relates to the manufacturing cost inclusive of any other amount received or receivable directly or indirectly to make the product marketable. The manufacturing of a product and the marketability thereof are inbuilt elements of the scheme of assessable value under Section 4 of the said Act.

The term "sale" used in the definition clause should not be misunderstood as having used, otherwise than to identify the stage at which the product is cleared to the customer i.e. the buyer thereof and the price element which is to be considered for the purpose of deciding the issue relating to the assessable value of the manufactured goods. It essentially denotes the total consideration payable by the buyer for the product which is to be considered while calculating the assessable value of the goods for the purpose of determining the duty liability under the said Act. It is totally different from the liability relating to sale tax. This is apparent from the scheme of the Act as well as the intent and spirit of the Section 4 itself.

A perusal of definition of the term "transaction Value" does not disclose that the elements to be included in the assessable value would depend upon direct flow back of the consideration to the assessee. Such a conception shall defeat the spirit of amendment to the law. Even indirect benefit in that regard, wholly or partly, resulting from the payment made by the buyer to the dealer in connection with or by reason of the sale transaction will have to be included in the assessable value. Being so, any amount collected by the dealer towards pre-delivery inspection or after sale services from the buyer of the goods under the understanding between the manufacturer and the dealer or forming part of the activity of sale promotion of the goods would be a payment on behalf of the assessee to the dealer by the buyer, and hence, it would form part of the assessable value of such goods. Undoubtedly, such collection of charges by the dealer could also be to the advantage of the dealer to discharge post sales obligations/liability arose under contract of sale. However, that may involve a question of profit to the dealer and may be a subject matter of assessment for the purpose of direct taxes. However, in relation to the manufacturer, it would be an indirect consideration received by the assessee in relation to the clearance of the product manufactured by him.

The definition of the expression "transaction value" is neither restrictive in nature nor exhaustive but illustrative and inclusive. The definition clause uses terms like "means", "includes", "including, but not limited to", and "but does not include". The word "includes" has been suffixed by the phrase "in addition to". Apparently, it is a definition of extensive nature and at the same time it is restrictive and exhaustive in relation to the items to be excluded therefrom. It discloses to be of very wide and extensive in nature and it is evident from the use of the expressions like "includes in addition to" and "including but not limited to". At the same time, it precisely pinpoints

the items which are excluded therefrom, with the prefix as "but does not include". Exclusions being defined no presumption for further exclusions is permissible since measure of levy is revenue yield base. There appears no ambiguity to say that the amendment made w.e.f. 1.7.2002 has to cover all factors/elements integrally connected with sale of excisable goods to contribute for determination of assessable value thereof.”



M/s Galaxy Textiles Vs CCE, Vapi (Dated: July 13, 2010)

Central Excise – 100% EOU – Allegation of shortage of finished goods – Statements made by partner and authorized signatory only admit shortage of goods and not clandestine removal – Findings of Appellate Commissioner that partner and authorized signatory admitted illicit removal inaccurate, not sustainable – Assessees depositing duty to avoid litigation not a ground to sustain duty demand – Shortages to be corroborated by independent evidence – Impugned order not sustainable, liable to be set aside


M/s Panchmahal Steel Ltd Vs CCE, Vadodara (Dated: May 24, 2010)

Central Excise – CENVAT Credit – M S pipes, steel structures like beams, try plates, bearings and columns, used for making platform of continuous casting machine not capital goods, credit not admissible – Impugned order upheld


CCE, Hyderabad Vs M/s Sagar Cements Ltd (Dated : April 8, 2010)

Central Excise – Bulk sale of cement packed in 50 kg HDPE bags to customers by affixing RSP and availing benefit of Notification No. 4/07-CE – No case advanced by Revenue that RSP not required to be declared on such supplies – Assessees directed by Controller, Legal Metrology to affix RSP on cement bags – Benefit of Notification 4/07-CE not deniable – No infirmity in impugned order – Revenue appeal devoid of merits


M/s Sadashiv Casting Ltd Vs CCE, Chandigarh (Dated: March 18, 2010)

Central Excise – CENVAT credit availed on the basis of fake invoices but reversed subsequently before issue of SCN – Though credit was not utilized, allegation of fraudulent availment being neither refuted nor challenged at any stage, penal action under Rule 13 read with Section 11AC justified – Benefit of reduced penalty @ 25% not available since balance of interest and penalty not paid within stipulated period as provided by adjudicating authority – No infirmity in impugned order


CCE, Tirupati Vs M/s India Cements Ltd (Dated: May 14, 2010)

Central Excise – CENVAT Credit not e ligible on GC/GP Sheets used to replace roof over cement mills – LB decision in Vandana Global Ltd = 2010-TIOL-624-CESTAT -DEL-LB followed – Since issue involved was contentious with orders for and against assessees, imposition of penalty set aside


CCE, Bangalore Vs M/s Shree Pla Pvt Ltd (Dated: March 9, 2010)

Central Excise – Export of Goods under ARE-1 to SEZs without furnishing LUT as required in Notification No. 42/2001-CE(NT) –Imposition of penalty of Rs. 5000/- under Rule 27 of Central Excise Rules, 2002 justified for not following procedure – Impugned order upheld


Nasik Strips Pvt Ltd Vs CCE, Nasik (Dated: July 9, 2010)

Apex court's ruling on 'preponderance of probabilities' in D.Bhoormull was rendered in the context of sustaining demand of duty – apart from making a material mistake in the electricity consumption figures for computation of demand no evidence gathered from purported suppliers of materials and buyers – Prima facie case – Stay granted



M/s Swastik Engineering Vs CCE, Bangalore (Dated: October 28, 2009)

Central Excise – Cutting/slitting of bronze, brass and copper plates/coils into narrower strips does not amount to manufacture – Assessee having paid duty on final products and filed monthly returns, demand of CENVAT credit on inputs/capital goods used in

‘activity not amounting to manufacture' fails on limitation


Elgi Tread (India) Ltd Vs CCE, Coimbatore (Dated: April 6, 2010)

Central Excise – Valuation – The appellants sold the goods at lower price as the buyers make prompt payments – No contrary evidence brought forward by the department to show that lower price was not available to any other buyer who was willing to make prompt payment – Impugned order is set aside.


M/s Chennai Petroleum Corporation Ltd Vs CCE, Chennai (Dated: May 11, 2010)

Central Excise – Refineries are no longer warehouses with the introduction of new Central Excise Rules in 2001/2002 – Movement of furnace oil from one refinery to another without payment of duty is not permissible – However, matter remanded to demand duty only on the quantity which was not removed on payment of duty from the second refinery.


M/s Surya Colour Products P Ltd Vs CCE, Guntur (Dated: April 6, 2010)

Central Excise – Eligibility of CENVAT credit on capital goods viz., ‘BT Tint master machines' and ‘Manual Dispensers' installed at branch offices of paint manufacturer for matching colour requirements of customers – Rule 4(5)(a) of CENVAT Credit Rules, 2004 allows an assessee to avail credit on capital goods when sent to job worker for any other purpose – Lower authority having not examined applicability of Rule 4(5)(a) to the issue, matter remanded – No opinion on merits of case


M/s Bannari Amman Sugars Ltd Vs CCE, Salem (Dated: April 15, 2010)

Central Excise - 100% EOU - Clearance of used blades in DTA as scrap - Duty is payable only under Section 3 of the Central Excise Act, 1944 on transaction value under Section 4 of the Central Excise Act - Appellant is eligible for refund of differential duty paid on depreciated value.


CCE, Pune Vs M/s Kailash Auto Builders Ltd (Dated: June 9, 2010)

‘Skip Loader' for collection and carrying city garbage stored in specially designed containers placed on road is a Special purpose vehicle classifiable under heading 87.05 and entitled for benefit of exemption notification 6/2000-CE – Revenue appeal rejected



M/s Racold Thermo Ltd Vs CCE, Pune-I (Dated: July 26, 2010)

Mixing Argon and Hydrogen gas – Assessee treating the mixed gas as being a manufactured product in view of section 2(f) of the CEA, 1944 read with chapter note 9 in Chapter 28/38 and paying duty by availing Cenvat credit – Department seeking recovery of Cenvat credit availed - Pre -deposit ordered



M/s Toyota Kirloskar Auto Part Pvt Ltd Vs CCE, Bangalore(Dated: March 30, 2010)

Central Excise – Even where duty is paid before finalization of provisional assessment, manufacturer liable to pay interest on differential duty – Larger Bench decisions in Cadbury India - 2008-TIOL-1986-CESTAT -MUM-LB and Bimetal Bearings - 2008-TIOL-1821-CESTAT -MAD-LB followed


M/s Universal Power Transformer Pvt Ltd Vs CCE, Bangalore (Dated: May 24, 2010)

Central Excise – Manufacture and clearance of goods under SFIS scheme at NIL rate of duty availing benefit of Notfn 34/2006-CE dated 14.06.2006 – Common inputs used for dutiable goods and goods cleared under SFIS scheme – Debits made in SFIS would not amount to exemption from payment of duty, not liable to pay 10% under Rule 6(3)(b) of CENVAT Credit Rules, 2004 – Impugned order liable to be set aside


M/s Velvette International Pharma Products Vs CCE, Chennai (Dated: May 4, 2010)

Central Excise – Nivaran 90 Herbal Cough Syrup – Exemption as Ayurvedic medicine – The appellants have not been able to produce any evidence that in common parlance, the impugned goods are treated as Ayurvedic medicine by the public - The only certificate produced by them before the lower authority does not anywhere certify the impugned goods to be Ayurvedic – Some of the ingredients used were also not listed in the Ayurvedic texts – Extended period upheld - The impugned goods are not entitled for exemption as Ayurvedic Goods.


M/s Vidyut Metallics Pvt Ltd Vs CCE, Mumbai (Dated: June 21, 2010)

Fire accident in factory in 1998 but C.Ex authorities not informed – remission claimed after receipt of claims from Insurance company – SCN issued in the year 2002 denying claim and invoking rules 57A/57Q of CER, 1944 – when rules no longer existed in the statute book in year 2002, SCN not sustainable – Prima facie case – Stay granted



CCE, Chennai Vs M/s Shivsu Watek Pvt Ltd (Dated: May 12, 2010)

Central Excise – Excisability – Mineral Water Plant assembled at site of customers - T he adjudication order clearly considers how the Mineral Water Plant has come into existence and that it is grouted to the civil foundation on a permanent basis - The system in question is not goods subject to duty and, therefore, impugned order is upheld.


Sree Visalakshi Mills (P) Ltd Vs CCE, Madurai (Dated: April 6, 2010)

Central Excise – Manufacture of cotton yarn on job work basis for and on behalf of the principal – goods cleared under ARE 3 to the exporters and the invoices were raised on the principal for realizing the job charges – Contention of the revenue that there has been any procedure lapse is not tenable as the conditions under Notification No 43/2001 have been fulf illed.


M/s Sai Chemicals Private Ltd Vs CCE, Raipur (Dated: April 27, 2010)

Clandestine removal - It is settled law that to establish any charge or accusation, it is not the quantity of the evidence but it is the quality of the evidence which is material - once the basic facts which are relevant to establish the clandestine manufacture and removal of the final product are not disputed by the manufacturer, the question relating to the absence of further corroborating evidence does not arise.

Appellants had maintained detailed records pertaining to the production in the factory and such records having been produced, which apparently revealed certain quantity of production of goods having been suppressed and not disclosed in the statutory records, it certainly amounts to discharge of the initial burden of the department in establishing the case of the department about clandestine manufacture and removal of the goods by the manufacturer - Onus shifts upon the manufacturer to establish that the entries in such private records do not relate to the production in the factory or that the e ntries do not relate to manufacture and removal of the goods - appellants have totally failed to discharge his onus.

Question of further evidence in the form of buyer's records or transporters examination or electricity records or record pertaining to excessive raw material need not be referred to – clandestine removal proved – Appeal dismissed.


CCE, Hyderabad Vs M/s Kernex Microsystems (India) Ltd (Dated: March 29, 2010)

Central Excise – Excess duty paid along with interest at the time of de-bonding without considering benefit of depreciation, claimed as refund – Revenue aggrieved with refund of interest in the absence of specific provision in Section 11B(1) prior to 10.05.2008 – Held: Any amount not payable under authority of law cannot be retained by the authorities – No infirmity in impugned order upholding sanction of refund of interest amount


CCE, Chennai Vs M/s Sundaram Clayton Ltd (Dated: May 25, 2010)

Central Excise – CENVAT Credit – Credit is admissible on the service tax paid on employees' Medical Insurance and Employees' personal accident insurance.


Sundaram Dynacast Pvt Ltd Vs CCE, Chennai Sundaram Dynacast Pvt Ltd Vs CCE, Chennai (Dated: May 24, 2010)

Central Excise – Rejected goods removed from the factory as scrap - Since the duty on scrap has been paid by the assessee, no further duty liability arises.


CCE, Nagpur Vs M/s Ultra Tech Cement Ltd (Dated: July 7, 2010)

No where it is mentioned in rule 2(1) of the CENVAT Credit Rules, 2004 that the input service credit is not available for the services utilized outside the factory premises – Credit on account of services used for construction, erection, installation and other services like maintenance and repairs of the Fly Ash Plant situated outside the factory premises is admissible - Revenue appeal rejected



Skan Research Pvt Ltd Vs CCE, Pondicherry (Dated: May 10, 2010)

Central Excise – Stay / Dispensation of pre -deposit – Valuation of physician samples – No prima facie case made out against the demand of duty as per the provisions of Rule 4 of the Central Excise (Determination of Price of Excisable Goods) Rules, 2000 – Pre -deposit of 50% of the duty demanded ordered.


CCE, Chennai Vs M/s Hyundai Motor India Ltd (Dated: May 6, 2010)

Central Excise – Provisional Assessments – Finalisation of the provisional assessment is sine qua non for issuance of notice under Section 11 A – Also once the assessment is provisional, it is provisional for all purposes – No reason to interfere with the order of the adjudicating Commissioner dropping the proceedings initiated before finalization of provisional assessments.


CCE, Tirunelveli Vs M/s The India Cements Ltd (Dated: May 11, 2010)

Central Excise – CENVAT Credit on capital goods like M.S. Plates/Channels/Pipes used for putting up super structures – Matter remanded in view of Larger Bench decision in

case of Vandana Global in 2010-TIOL-624-CESTAT -DEL-LB


M/s Wardex Pharmaceuticals Pvt Ltd Vs CCE, Chennai (Dated: January 28, 2010)

Central Excise – CENVAT Credit availed on debit notes – matter remanded to examine whether debit notes are valid for taking credit and also whether the services can be considered as input services.


M/s Cabot Sanmar Ltd Vs CCE, Salem (Dated: May 25, 2010)

Central Excise – CENVAT Credit – Input service – Consultancy Service for environmental evaluation – Credit is admissible.


Xomox Sanmar Ltd Vs CCE, Tiruchirapalli (Dated: June 2, 2010)

Central Excise – CENVAT Credit – Input Service - Landscaping service – Credit is admissible.


CCE, Chennai Vs Ilijin Automotive Pvt Ltd (Dated: April 13, 2010)

Central Excise – Penalty under Section 11AC – Once the demand has been confirmed under proviso to Section 11A(1), the adjudicating authority has no option but to impose penalty under Section 11AC – Prayer of revenue to impose penalty under Rule 173Q also is not acceptable .


CCE, Chennai Vs M/s Shivsu Watek Pvt Ltd (Dated: May 12, 2010)

Central Excise – Excisability – Mineral Water Plant assembled at site of customers - T he adjudication order clearly considers how the Mineral Water Plant has come into existence and that it is grouted to the civil foundation on a permanent basis - The system in question is not goods subject to duty and, therefore, impugned order is upheld.


CCE, Indore Vs M/s Mahle Migma Ltd (Dated: April 22, 2010)

Central Excise – CENVAT credit on outward transportation – Credit is admissible only if the conditions set out in the Board Circular dated 23.8.2007 are satisfied – matter remanded to ascertain whether the place of removal is the factory gate or the buyer's premises.


L G Electronics ( India ) Pvt Ltd Vs CCE, Noida (Dated: April 12, 2010)

Central Excise/Service Tax – Eligibility of CENVAT Credit of service tax paid on outward transportation of finished goods upto customer's premises

Scope of ‘input service' – When goods are sold on FOR destination at customer's premises, all expenses incurred by manufacturer up to the time of sale at ‘customer's premises' including transportation expenses, includible in assessable value – While interpreting scope of ‘input service' as defined in Rule 2(1) of CCR, 2004, clauses (xvia) and (xviaa) of s. 37 (2) of CEA, 1944 not to be viewed in isolation, but the entire scheme of levy and collection of Central Excise Duty under CEA, 1944 to be taken into account – No conflict exists between provisions of Rule 2(1) of CCR, 2004 and clause (xvia) and (xviaa) of section 37(2)

‘Place of removal' – If sale of goods takes place at a place other than depot or consignment agent's premises i.e. at customer's premises, such ‘premises' to be treated as ‘place of removal' and GTA service availed for transportation of finished goods to such ‘place of removal' to be treated as ‘input service' – Board's Circular No. 97/8/07-S.T. dated 23-8-07 followed

CENVAT Credit on GTA service for outward transportation – Outward transportation of finished goods up to ‘place of removal' specifically covered by definition of ‘input service', eligible for input tax credit – CENVAT credit of service tax on GTA service availed for transportation of goods up to ‘place of removal' available even if excise duty on finished goods is paid on assessable value in terms of s.4 or on tariff values fixed under s. 3(2) of CEA, 1944 or on valuation with reference to RSP under Section 4A – Board's Circular 137/3/2006-CX.4 dated 02-02-06 followed

Matter remanded – Matter remanded to ascertain if assessees sales are on FOR destination basis as claimed, Commissioner to give specific findings if assessee complied with Circular dated 23-08-07 – No findings recorded by Commissioner to charge assessee with suppression/wilful misrepresentation of facts, matter remanded to examine this aspect as well – Impugned order set aside



M/s Hira Steels Limited Vs CCE, Raipur (Dated: July 1, 2010)

Central Excise – CENVAT Credit eligible on welding electrodes used in repair and maintenance – Credit not available on plates, M S angle, M S channels, steel rounds, ferricast, stainless steel etc used for fabrication of supporting structures – Since issues involved interpretation of provisions relating eligibility of credit, levy of penalties set aside


CCE, Jaipur-I Vs M/s Rohit Surfactants Pvt Ltd (Dated: April 13, 2010)

Central Excise – Demand of 10% amount for not following the procedure under Rule 6(2)(b) of CENVAT Credit Rules, 2004 in respect of clearance of spent Sulphuric Acid without payment of duty under Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods Rules 2001 – Such clearance could not be said to have been without payment of duty under law – No reason to interfere with the order of the Commissioner(Appeals) setting aside the demand.


CCE, Meerut Vs M/s Titawi Sugar Complex (Dated: May 12, 2010)

Central Excise – Remand by Commissioner (Appeals) – It is settled law that Commissioner (Appeals) has no power to remand the case – The Commissioner (Appeals) should have decided the case – Revenue appeal allowed.

Jurisdiction of the Tribunal – Since the issue is not relating to loss of goods in transit , but only occurring in the course of manufacture of goods, the bar under Section 35B(1) is not attracted – Preliminary objection on maintainability of the objection does not sustain.


M/s Rana Casting Ltd Vs CCE, Meerut (Dated: March 26, 2010)

Central Excise – Exemption under Notification No 50/2003 CE Dated 1.6.2003 for units that have undertaken substantial expansion – The appellant unit replaced the 4 MT capacity furnace with 6 MT capacity furnace – The replacement resulted in 50%

increase in installed capacity can be treated as "Substantial expansion by way of not less than 25% increase in installed capacity” – The earlier judgements of the Tribunal relied on by the revenue pertain to project imports and the same are not applicable to the Notification No 50/2003 CE.


M/s Motilal Agarwal Steels Pvt Ltd & Others Vs CCE, Kanpur (Dated: April 22, 2010)

Central Excise – Clandestine production and clearance – Demand of duty solely based on power consumption when there is no other evidence of unaccounted production or unaccounted sale is not sustainable.


CCE, Indore Vs M/s Kores (India) Ltd (Dated: April 21, 2010)

Central Excise – Interest on delayed refund under Section 11 BB - As per the provisions of Section 11BB if any, duty to be refunded under Section 11B (2) to any applicant is not refunded within three months from the date of receipt of application under Section 11B (1) of that Section, there shall be paid to that applicant, interest at such rate, as may be notified by the Central Government on such duty, from the date immediately after expiry of three months from the date of receipt of said application till the refund of such duty – Contention of the revenue that the interest liability starts only from the date when the issue was finally decided in favour of the respondents is not sustainable.


M/s Nahar Spinning Mills Ltd Vs CCE, Bhopal (Dated: March 25, 2010)

Central Excise - CENVAT Credit – Used lubricating oil cleared as waste oil – Provisions of Rule 3(4) of the CENVAT Credit Rules, 2002 are not attracted as the same cannot be treated as inputs removed as such – Further the Show Cause Notice demanded duty on waste oil under CSH 2710.90 but the adjudicating authority travelled beyond the allegations made in the Show Cause Notice and confirmed demand under provisions of Rule 3(4) of the CENVAT Credit Rule, 2002 – Impugned order is not correct.


M/s Burn Standard Co Ltd Vs CCE, Salem (Dated: May 17, 2010)

Central Excise – CENVAT Credit – Dutiable and exempted goods – Option of paying credit attributable to the inputs used in exempted goods is available retrospectively – Matter remanded to compute the credit payable under Rule 6 (3A) of CENVAT Credit Rule, 2004.


M/s Shree Gopal Textiles Vs CCE, Salem (Dated: May 14, 2010)

Central Excise – Penalty equal to the duty – duty evasion came to light as a result of the department's efforts and there is no challenge to duty evasion, mandatory penalty upheld.


Neyveli Lignite Corporation Ltd Vs CCE, Pondicherry (Dated: April 12, 2010)

Central Excise – Benefit of exemption under Notification 76/86 C.E. dated 10.2.1986 to carbon dust cleared by the assessee – Though the authorities below classified the product as carbon attracting duty at appropriate duty, the classification of the goods does not affect the eligibility for exemption – T he claim of the assessee that what was cleared was sludge, and not dust is acceptable – The appellants are entitled for exemption.


M/s Sundaram Clayton Ltd Vs CCE, Chennai (Dated: February 10, 2010)

Central Excise – Valuation – warehousing charges collected at Depot to be included in Assessable Value: Once there is no sale at the factory gate of the goods in question, automatically, the value of such goods has to be determined on the basis of the value at which they are sold, which in this case is from the depot in Pune. The impugned order including 4% of Ware housing charges in the assessable value, upheld.


Godrej & Boyce Mfg Co Ltd Vs CCE, Mumbai (Dated: June 30, 2010)

Plea of automatic accrual of interest is not relevant to the context where a statutory provision for levy of interest is under scrutiny – pre -amended section 11AB of the CEA, 1944 is not applicable when there are no allegations of fraud, collusion in the SCNs.



CCE, Salem Vs M/s ITC Ltd (Dated: June 4, 2010)

Central Excise – CENVAT Credit – Input service – Agricultural work is an input service, credit is allowed – Credit is not admissible on leveling of Children Park and construction of toilet in school in village – Rule 2(1) of the CENVAT Credit Rule 2004.


CCE, Tirunelveli Vs M/s Madura Coats (P) Ltd (Dated: March 8, 2010)

Central Excise – copy of the assessee's letter referred in the Tribunal's remand order misplaced by the department – matter remanded again for fresh adjudication without anyway relying on the assessee's letter.


M/s Nubiola India (P) Ltd Vs CCE, Chennai (Dated: April 29, 2010)

Central Excise – Refund – Unjust enrichment – Incidence of excise duty cannot be assumed to be passed on to the purchaser in cases where assessee raised credit notes – Matter remanded to examine the issue afresh.


TVS Motor Company Ltd, Hosur Vs CCE, Chennai (Dated: May 22, 2010)

Central Excise – valuation of Aluminium scrap cleared to job worker – since the appellants could have followed the procedure prescribed for getting goods manufactured by a job worker without paying duty there would have been no short levy as found in the impugned orders - the demands are a revenue neutral exercise – appeals allowed.


M/s HMTD Engineering Pvt Ltd Vs CCE, Belapur (Dated: June 22, 2010)

Imposing penalty on appellant without quoting provisions of law is illegal.



M/s V N K Menon & Co Vs CCE, Coimbatore (Dated: May 19, 2010)

Central Excise – Valuation – Job work – Service charges paid by the principal manufacturer to the job worker in relation to manufacture of goods are in the nature of overheads and are required to be included in the assessable value – Demand after the department was in knowledge of the facts is barred by limitation.


M/s Veejay Lakshmi Textiles Ltd Vs CCE, Salem (Dated: April 15, 2010)

Central Excise – CENVAT Credit – Removal of capital goods after 10 years of use – The appellants are required to pay duty only on the depreciated value, order demanding credit originally taken is set aside and matter remanded.


CCE, Bangalore Vs M/s Shree Pla Pvt Ltd (Dated: March 9, 2010)

Central Excise – Export of Goods under ARE-1 to SEZs without furnishing LUT as required in Notification No. 42/2001-CE(NT) –Imposition of penalty of Rs. 5000/- under Rule 27 of Central Excise Rules, 2002 justified for not following procedure – Impugned order upheld


M/s Geltec Pvt Ltd Vs CCE, Bangalore (Dated: May 14, 2010)

Central Excise – ‘Drying plates' used for drying gelatin capsules in the dryer, ‘plastic pallets' used for transportation of raw materials, semi finished goods and finished goods within the factory premises and ‘steel racks' used for storing raw materials and finished goods, eligible for CENVAT Credit – Credit not available on polysterene panels, steel doors and frames as their usage not justified by appellant – Penalty

imposed under Section 11AC set aside, but penalty of Rs. 10,000/- imposed under Rule 15(3) of CENVAT Credit Rules, 2004

2010-TIOL-998-CESTAT -BANG

CCE, Guntur Vs Subhodaya Chemicals Ltd (Dated: March 19, 2010)

Central Excise – Duty paid by supplier on 'sulphur' which attracts ‘NIL' duty available as CENVAT Credit to buyer – It is settled law that input recipient cannot re-classify or re-assess duty liability once supplier classified the goods and discharged duty liability – No infirmity in impugned order

2010-TIOL-996-CESTAT -DEL

Om Metal Vs CCE, Jaipur (Dated: May 20, 2010)

Miscellaneous application seeking inclusion of a letter as additional evidence – appellant not coming with clean hands – in the proceedings and submission before the lower authorities letter not taken as defence – Application dismissed.

2010-TIOL-994-CESTAT -MUM

Philips Electronics India Ltd Vs CCE, Pune-I (Dated: June 18, 2010)

Cenvat Credit is not deniable on inputs written off as obsolete in financial books of accounts – Rule 3(5B) inserted in CCR, 2004 by Notfn. 26/2007-CE(N.T) dated 11.05.2007 does not have retrospective operation and cannot be pressed into service for the period 1996 to 2002 – Pre-deposit waived and Stay granted: CESTAT


2010-TIOL-993-CESTAT -MAD

M/s Sundaram Fasteners Ltd Vs CCE, Chennai (Dated: May 21, 2010)

Central Excise – CENVAT Credit on CTD bars used in supporting structures for machinery – Credit is not admissible – No interest and penalty imposable if credit taken was not utilized.


M/s Gujarat Heavy Chemicals Ltd Vs CCE, Madurai (Dated: May 21, 2010)

Central Excise – CENVAT Credit – CENVAT credit rules allow a manufacturer to clear as such duty paid inputs in respect of which credit has been taken, either for home consumption on reversal of the credit or for export or export processing without payment of duty - the activity is within four corners of law – demand set aside.


M/s OHM Industries Vs CCE, Belgaum (Dated: March 26, 2010)

Central Excise – CENVAT Credit – Eligibility of credit on capital goods procured and installed in premises other than main manufacturing unit – When capital goods were installed in appellant's own units and for usage in manufacture of same final products, it cannot be regarded as alienation or disposal of capital goods, credit not deniable – Impugned order set aside


M/s Universal Power Transformer Pvt Ltd Vs CCE, Bangalore (Dated: May 24, 2010)

Central Excise – Manufacture and clearance of goods under SFIS scheme at NIL rate of duty availing benefit of Notfn 34/2006-CE dated 14.06.2006 – Common inputs used for dutiable goods and goods cleared under SFIS scheme – Debits made in SFIS would not amount to exemption from payment of duty, not liable to pay 10% under Rule 6(3)(b) of CENVAT Credit Rules, 2004 – Impugned order liable to be set aside


M/s Electronics Corporation Of India Ltd Vs CCE, CC & ST Hyderabad (Dated: April 1, 2010)

Central Excise – Exemption to clearances made to SAMYUKTA program under Notification No. 64/95-CE available during 02.06.2006 to 20.08.2006 even in the absence of a notification during relevant period in view of Apex Court decisio n in W P I L Ltd = 2005-TIOL-51-SC-CX-LB – Prima facie case for full waiver of pre-deposit

2010-TIOL-977-CESTAT -AHM

M/s M M Scrap Traders Vs CCE, Bhavnagar (Dated: February 4, 2010)

Central Excise – Seizure of non duty paid goods from the premises of traders – Show cause notice issued to unknown ship breaking yards, as if department could not found out who are the suppliers – Penalty equal to duty imposed to unknown ship breakers – Penalty equal to duty also imposed on appellant traders under Rule 26 of Central Excise Rules, 2002

CESTAT observes: Appellants have dealt with the goods knowing they were not duty paid. Therefore penalty is imposable. - Department should have investigated and demanded the duty from ship breaking yards having identified them. However, this does not help the appellants at all. – Some of the duty paid invoices were not considered by lower authorities. After considering the same duty liability comes down - Appeal rejected as regards liability of penalty and confiscation. However, quantum of fine in lieu of confiscation and penalty reduced


M/s Instrumentation Ltd Vs CCE, Jaipur-I (Dated: February 22, 2010)

Central Excise – Interest on differential duty paid through supplementary invoices payable from the date on which such duty ought to have been paid – Apex Court decision in SKF Ltd = 2009 TIOL-82-SC-CX followed – Prima facie no case for grant of stay against recovery


J K Sugar Ltd Vs CCE , Meerut (Dated: May 6, 2010)

Central Excise – CENVAT Credit – PP Woven bags used for transportation of the raw sugar from the port of import to the factory premises – Credit is not admissible - The packing material for raw material, cannot be treated as 'used in relation to manufacture' of final products - The finding of the lower authorities on the scope of provisions of Rule 2(k) of CENVAT Credit Rules 2004 does not call for interference – However, no case for imposing penalty as the matter involved interpretations of CENVAT Credit Rules.



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

Central Excise – Stay / Dispensation of pre -deposit - Demand of duty on clinker contained in the Cement cleared to SEZ units by denying exemption under Notification 67/95CE Dated 16.03.2005 – Goods cleared to SEZ units cannot be treated as exempted goods, but to be reckoned as export – Pre -deposit waived.


M/s Kerala Footwear Products & Others Vs CCE, Calicut (Dated: March 19, 2010)

Central Excise – Classification of strap plaps – Division Bench having decided that strap-plaps cleared during extended period are not liable to duty and there being no clearances during the normal period, answering reference on classification of strap plaps would be futile – Registry directed to place file before regular bench to dispose appeal


M/s Mahindra & Mahindra Ltd Vs CCE, Mangalore (Dated: March 22, 2010)

Central Excise – Refund – Credit availed on inputs used in manufacture of final products cleared on payment of duty prior to such final products being exempted by Notification No. 23/2004-CE dtd.9/7/2004 – Balance of such credit lying in books as on 09/07/2004 available as refund and shall not lapse – Impugned order inconsistent with settled law, liable to be set aside


M/s Ramdarshan Rolling Mills Vs CCE, Indore (Dated: April 6, 2010)

When the benefit of exemption under Notification No.8/03-CE was subject to the condition of not availing input duty credit and input duty credit though initially taken was reversed, it would amount to not taking the credit and hence the benefit of exemption under Notification No.8/03-CE cannot be denied – CESTAT decision in Sagar Twisters vs CCE, Mumbai ( 2005-TIOL-574-CESTAT-MUM ) followed.

Credit entries regarding Cenvat credit made by the Appellant during 1.4.06 to 15.6.06 were due to bonafide mistake which was rectified and for this it could not be correct to deny the benefit of SSI exemption to the Appellant – Appeal allowed.


M/s Delux Bearing Limited Vs CCE, Ahmedabad (Dated: February 22, 2010)

Central Excise – ‘Parts, Components and Assemblies' of automobiles brought under MRP based assessment w.e.f. 01.06.2006 – Activity of packing, repacking and relabeling of automobile parts viz., ‘ball bearings' to be considered as manufacture in terms of Section 4A read with Notification No. 11/2006-CE (NT) only w.e.f. 01.6.2006 – ‘Ball bearings' lying in stock as on 31.05.2006 and cleared in retail packs on or after

June 1, 2006 not subject to MRP based assessment and consequently not leviable to excise duty – Impugned order confirming duty demand and levy of penalty on company as well as individual set aside


M/s Jai Steels (India) Vs CCE, Jaipur (Dated: February 2, 2010)

Central Excise – Manufacture of dutiable SS cold rolled patta/patti and exempted SS scrap in an integrated process – Demand of 8%/10% amount on exempted SS scrap not sustainable – Impugned orders set aside


CCE, Indore Vs M/s Allied Asia Gears Ltd (Dated: March 16, 2010)

For proving clandestine removal without payment of duty, unaccounted and unexplained shortage of finished goods vis-a-vis the stock shown in the RG-1 should have been established or evidence of unaccounted clearances of finished goods should have been produced - Revenue appeal dismissed.


The Paper Products Ltd Vs CCE, Mumbai (Dated: May 31, 2010)

On the one hand, the Commissioner says that the activity engaged is not manufacture u/s 2(f) of the CEA, 1944 and hence CENVAT credit is not available – On the other hand, the CCE proposes recovery of the amount paid u/s 11D - self contradiction is writ large - Prima facie case – Stay granted



M/s Orchid Exports Vs CCE, Hyderabad (Dated: March 8, 2010)

Central Excise – Allegation of availment of CENVAT Credit on processed fabrics based on manipulated documents without receiving materials – Allegations based on documentation at check post manned by commercial tax officers – In view of critical nature of evidence, adjudicating authority should have allowed cross examination of commercial tax officers manning the check post – Excess CENVAT Credit claimed as refund under Rule 5 of CCR, 2004 against export of finished goods and no objections raised while sanctioning refunds – No reliable evidence to prima facie substantiate the

findings that appellants did not receive processed fabrics under cover of invoices against which CENVAT credit was availed – Full waiver of pre-deposits ordered and stay granted


M/s Saravana Alloy Steels Pvt Ltd Vs CCE, Bangalore (Dated: March 22, 2010) Central Excise – Allegation of clandestine manufacture and clearance of MS ingots and CTD bars based only on expert opinion on consumption of electricity – In the absence of any other corroborative evidence adduced by Revenue, prima facie case for full waiver of pre -deposit


M/s TVS Motor Co Ltd Vs CCE, Chennai (Dated: February 22, 2010)

Central Excise – Stay/Dispensation of Pre -deposit – distribution of credit on input services among different units of the appellants – the appellants are prima facie entitled to distribute the credit in any manner between the units – pre -deposit waived.


M/s L G Balakrishnan & Bros Ltd Vs CCE, Trichy (Dated: February 4, 2010)

Central Excise – CENVAT Credit on additional service tax paid by the service provider against whom the allegation of suppression of facts has been established – The restriction under Rule 9(1)(b) of the CENVAT Credit Rules 2004 is not applicable for service tax credit – credit is admissible.


The Kerala State Bamboo Corporation Ltd Vs CCE, Cochin (Dated: February 11, 2010)

Central Excise – – Manufacture and clearance of ‘resin bonded bamboo ply' without payment of duty based on old tariff heading 4410 without considering revision of tariff heading to 4421 90 90 in year 2006 – Appellate Commissioner's classification under Chapter heading under 4421 90 90 having not disputed by appellants, duty liability upheld – Value at which goods cleared to be adopted as cum -duty price – Matter remanded to adjudicating authority for re -working value and demand duty after allowing CENVAT credit set-off on inputs


CCE, Thane Vs M/s Aura Oil Industries (Dated: May 27, 2010)

When both, the appeals of the assessee and the Revenue were rejected, it can be said that the Tribunal has not arrived at any decision – ROM applications allowed – matter to be re -heard



M/s Anant Raj Industries Ltd Vs CCE, Delhi (Dated: January 27, 2010)

Ceramic Glazed Tiles cleared under notification 6/2002-CE at concessional rate by satisfying the condition of non-availment of cenvat credit - Rule 5 of the Cenvat Credit Rules cannot be read in isolation - it is part and parcel of Cenvat Credit Rules - To consider a notio nal credit attributable to inputs used in the export product as having been taken under Rule 3 of the Cenvat Credit Rules and to treat that the said credit could not utilised by the appellants "for any reason" and, therefore, refundable under Rule 5 of the Cenvat Credit Rules may not be proper.


M/s Sudhan Spinning Mills (P) Ltd Vs CCE, Madurai (Dated: January 21, 2010) Central Excise – Opting out of EOU Scheme – Demand of duty on indigenously procured capital goods – Contention of the appellants that no duty demand can be raised without filing an appeal against the assessment order of the Assistant Commissioner is not tenable – Demand of duty upheld.


M/s Rimtex Industries Vs CCE, Bhavnagar (Dated: March 17, 2010)

Central Excise – Manufacture and clearance of textile machinery parts without payment of duty against invalidation of EPCG licenses – As there is no specific provision/notification exempting excise duties for such clearances, duty liable to be paid with interest – Only benefit available is refund of terminal excise duty in terms of paragraph 8.3 of FTP – Clearances being made with knowledge and approval of department and in view of wrong interpretation of law by both sides, penalties not leviable – Impugned order confirming duty with interest upheld and order portion dealing with imposition of penalties set aside


M/s Concrete Products & Construction Co Vs CCE, Chennai (Dated: February 19, 2010)

Central Excise – railway sleepers destroyed during the process of destruction test – the assessee is not required to pay duty.


M/s Automotive Coaches & Components Ltd Vs CCE, Pondy (Dated: March 3, 2010)

Central Excise – Classification – Mobile Lifting Frame - The explanatory note providing exclusion from the Heading 84.26 supports the department's view that the impugned goods cannot be classified under Heading 84.26 but under Heading 87.05 as a special purpose motor vehicle.


Hindustan Petroleum Corporation Ltd Vs CCE, Mumbai (Dated: May 31, 2010)

Commissioner ignored a significant provision contained in the proviso to notification 67/95-CE while confirming demand of over Rs.3 crores – issue not addressed seriously – Stay ordered



M/s Kushal Fertilizers Pvt Ltd Vs CCE, Meerut (Dated: April 27, 2010)

Central Excise – Manufacture and clearance of M.S. conduit pipes by availing exemption Notification No. 11/88-CE – Earlier, since the Tribunal already arrived at a finding that there was no suppression after January 22, 1991 which was confirmed by Apex Court, lower authority not justified in invoking extended period after the said date – Matter remanded to Commissioner for re-computing duty and consequential penalty prior to January 22, 1991


CCE, Meerut Vs M/s Prem Steels (P) Ltd (Dated: March 12, 2010)

Central Excise – Shortage of MS ingots found by departmental officers during stock taking – Statement given by authorized signatory in handwriting admitting deficit in stocks not signed by Central Excise officer, cannot be regarded as statement under Section 14 of CEA but to be treated as a mere report to visiting officers – When there is no dispute on the manner in which stock taking was done based on factory supervisor's data, letter from Director stating that stock of similar quantity lying elsewhere and not checked by authorities not worth consideration – Impugned order of Appellate Commissioner set aside


M/s MSP Steel & Power Ltd Vs CCE, Raipur (Dated: January 7, 2010)

Central Excise – Clandestine clearances – loose sheets recovered from the Security Officer's room contained the details of dispatches like description of goods, date, vehicle No, challan, In/Out time, quantity and name of conveyance and the entries are genuine as admitted by the Security officer – order of Commissioner(Appeals) setting aside the demand is set aside and revenue's appeal allowed – part of the demand confirmed by the Commis sioner(Appeals) is upheld and the assessee's appeal dismissed.

2010-TIOL-927-CESTAT -KOL

M/s Dharampal Satyapal Ltd Vs CCE, Shillong (Dated: April 12, 2010)

Central Excise – NCCD paid by manufacturer availing Notification Nos. 32/99-CE and 27/01-CE eligible as CENVAT Credit to buyers – Whether supplying unit is a different legal entity or another unit of the assessee not a relevant factor for the purpose of payment of duty, availing of exemption or extending of CENVAT Credit – Prima facie case for full waiver of pre -deposit


M/s Triveni Engineering & Industries Ltd Vs CCE, Allahabad (Dated: February 10, 2010)

Central Excise – clandestine manufacture and clearance of V.P. Sugar – allegation of clandestine clearances based on the excess quantity of molasses declared by the appellant sustainable – the contention that the excess quantity of molasses was due to seepage of water is not acceptable as molasses with such excess quantity of water would be unfit for human consumption and could not have been consumed by the distillers – demand of duty sustainable on merits.

Limitation – department was in the knowledge of excess production of molasses – extended period not invokable .



CCE, Hyderabad Vs M/s Kumar Metallurgical Corporation Ltd (Dated: March 8, 2010)

Central Excise – Default in payment of excise duty in violation of Rule 8 of CER, 2002 – Revenue authorities informed by assessee about financial exigencies and were permitted to clear default in duty payment through installments – Invoking penal provisions of Rule 25 thereof justified but no reason to impose equivalent penalty as canvassed by Revenue – No infirmity in impugned order of Appellate Commissioner


Castrol India Ltd Vs CCE, Mumbai-II (Dated: June 18, 2010)

Inputs found short between physical stock taking and book stocks – Demand of Cenvat credit - Case not hit by proviso clause (a) to s.35B(1) of the CEA, 1944 – Appeal maintainable



CCE, Aurangabad Vs M/s Dhoot Compack Ltd & Others (Dated: June 2, 2010)

Issuance of an addendum after passing O -in-A by Commissioner(Appeals) – Board Circular dated 16.12.1999 prohibits issuance of corrigendum/addendum by adjudicating authority and is not relevant in the present context – Revenue appeal rejected.



CCE, Chennai III Vs Mira Textiles & Industries (Dated: February 2, 2010)

Central Excise – Valuation – clearance of kraft paper to sister units – the method of cost construction adopted by the respondents cannot be faulted with as the department had failed to establish that the category of kraft paper cleared to the sister units was of higher value category – extended period also cannot be invoked as the department was in know of different kinds of kraft paper.


M/s Superior Fabrics Vs CCE, Ghaziabad (Dated: March 15, 2010)

Central Excise – Clandestine manufacture and clearance of mosquito nets – De novo order passed by lower authority in conformity with Tribunal's remand directions to establish production capacity of assessee before confirming duty and penal liability – Since assessees contentions on de novo order are devoid of any merits and section 35F provides discretionary power to Tribunal to decide amount of pre-deposit, assessee directed to deposit Rs. 15 lakhs in addition to pre -deposit made during first round of litigation


CCE, Chennai Vs M/s Faiveley Transport India Ltd (Dated: March 12, 2010)

Central Excise – CENVAT Credit of service tax paid on Tour Operator Service – matter remanded as the lower appellate authority did not have the benefit of the decision of Tribunal in case of Chemplast Sanmar Ltd - 2010-TIOL-180-CESTAT-MAD


CCE, Mumbai Vs Vidyut Metallic Ltd (Dated: April 24, 2010/ May 5, 2010)

Finalisation of provisional assessment – Assessee taking suo motu credit in PLA account of excess duty paid proper – Revenue appeal dismissed



CCE, Chandigarh Vs M/s Surya Pharmaceutical Ltd (Dated: February 16, 2010)

Central Ex cise – Once goods cleared for export under bond are not exported and diverted for home consumption and duty liability discharged, provisions of interest in terms of para 2(v)(b) of Notification No.42/01-CE(NT) gets attracted – Appellate Commissioner's order permitting refund of interest paid not sustainable under law, liable to be set aside


CCE, Kanpur Vs M/s U P Engineering Corpotion (Dated: February 23, 2010)

Central Excise – Small Scale Exemption under Notification No 8/99 CE – As per condition 2(iv) of the notification, no credit on the inputs shall be availed by the assessee under Rule 57 A of the Central Excise Rules, 1944 – since the respondents violated the said condition, order-in-original confirming the demand is restored and the Commissioner(Appeals) order set aside.

Limitation - Affixation of show cause notice to the door of the factory of the respondents was in accordance with the provisions of law. It could not have been considered as failure of service of said notice – plea of limitation not sustainable.


Interscape Vs CCE, Mumbai (Dated: May 25, 2010)

Refund of pre -deposit – Commissioner directed to return the amount of Rs.15 lakhs within a period of 30 days along with interest thereon @12% from October, 2005 to the date of actual refund.



M/s Ajanta Offset & Packaging Ltd Vs CCE, Delhi (Dated: February 10, 2010)

Central Excise – Breach of Rule 5 of Central Excise (RGCRDMEG) Rules, 2001 – Rule 27 of CER 2002 does not bring within its fold any breach of provisions of Central Excise (R GCRDMEG) Rules, 2001 – Invocation of Rule 27 for imposition of penalty beyond jurisdiction and not sustainable


CCE, Pune Vs M/s Elpro International Ltd (Dated: June 1, 2010)

In the absence of ingredients of s.11AC of the CEA, 1944, mandatory penalty cannot be imposed.


2010-TIOL-895-CESTAT -KOL

CCE, Siliguri Vs M/s Bharat Petroleum Corpn Ltd (Dated: April 13, 2010)

Central Excise – Valuation of petroleum products cleared through company owned retail outlets – Law envisages that price of the greatest aggregate quantity of goods sold on the date of removal to be adopted while paying duty at the time of removal from factory gate – Subsequent sale at a later point of time and the actual sale price thereof, not relevant for determining assessable value – No infirmity in Appellate Commissioner's order

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