swamy associates is a through legal institution with specialised focus on Central Excise, Customs, Service Tax and allied laws.

CASE LAWS

-This section contains the Judgment on cases argued by the team swamy associates and reported.

Reported Cases 2009

S.No	Name of the party	ELT	STR	RLT	TIOL	Issue in brief
1	Ideal Industries	2009 (233) ELT 379				SSI - Brand name - Appellant is the owner for specific goods where others are owners for different goods - exemption available
2	Mak Controls	2009 (233) ELT 427				Exemption under notification 4/2006 -Sec 38 A
3	Faithful Security Services	2009 (13) STR 172				Service Tax - Penalties - Reduced
4	Future Focus Infotech (P) Ltd				2009 - TIOL 170	Development of software by supplying manpower - Not manpower supply service. Stay granted
5	IVRCL and NCC				2009 - TIOL - 167	Pipes exemption - first storage point - No restriction
6	Pricol Limited				2009 - TIOL - 175	Central Excise – CENVAT Credit – Credit of duty paid on facility charges for supply of liquid nitrogen gas – the buyer is entitled for Credit of the entire amount of duty paid by it towards supplies of liquid nitrogen gas including duty on the facility charges paid.
7	Sree Ganesh Steel Rerolling Mills				2009 - TIOL - 225	Amount paid duringinvestigation - protest - time bar not applicable - unjust enrichment aspect also verified - refund to be granted
8	Trichy Construction Company Vs CCE				209- TIOL - 258	Construction - Works Contracts - liable only from 01.06.07 - stay granted
9	Aditya Birla Nuvo Ltd				2009 - TIOL - 322	Input services - eligbility
10	Madhav Marbles and Granites				2009 - TIOL - 337	Central Excise – EOU – Finished goods damaged in transit – Demand – Granite slabs removed from the EOU were damaged in road accidents when the goods were in transit to the point of export. The damaged slabs were scrapped and abandoned under intimation to the department and claim of insurance. The intended export of the granite slabs did not come through on account of accident, which was beyond appellant's control. In the absence of willful default of export of goods by the EOU, the bond was not liable to been formed against them and consequently the demand of duty is not warranted. Moreover, the appellants could also claim the benefit of Notification No.24/2003-CE dt. 31.3.2003 which exempted all excisable goods produced or manufactured in an EOU, from payment of duty of excise. This exemption, however, was not applicable to such goods ‘if brought to any other place in India '. In the present case, the granite slabs cleared by the EOU never reached the DTA. They ended up as “scrap”, which was abandoned. Thus the appellants could legitimately claim the benefit of the Notification. Hence appeal is allowed. ( Para 3)
11	Rane TRW Steering Systems Limited				2009-TIOL-334	Service tax – Stay / Dispensation of pre-deposit – CENVAT Credit on outdoor catering service – prima facie case for waiver of pre-deposit in view of the Larger Bench decision holding the same as input service.
12	Benson & Benson		2009 (13) STR 395			Manpower supply service - PD Ordered
13	CCE VS Anabond Ltd	2009 )234) ELT 481				Exempted from declaration of MR under S of W M Act - Hence valuation under section 4 only
14	T.Stanes & Co Vs CCE	2009 (235) ELT 183
15	K.R. Alloys		2009 (13) STR 584
16	Nandan Biomatrix Limited		2009 (13) STR 549
17	Mak Controls				2009-TIOL-432	Contesting the issue in appeal and paying duty for subsequent period - To be treated as protest - refund not time barred. Indicating duty in the invoice,when both parties were firm on non liability to duty - NO unjust enrichment
18	Standard Cotton Spinners				2009-TIOL-450	Central Excise - Clandestine clearances - Validity of statement - Retraction - The impugned order found clandestine clearances by the appellants on the basis of statements of the transporters, who had initially given statements to the effect that they had transported higher quantities than those shown on the related invoices in respect of several consignments. The depositions contrary to the documents/records were made three years after the event, relying on their memory. These were retracted and they deposed that the initial statements had been given at the instance of the officers. In the circumstances, the initial depositions cannot be relied on to find clandestine clearances by a third party, namely the appellants, in the absence of independent evidence. As there is no sufficient evidence to prove clandestine clearance, appeal allowed
19	M. Ramakrishna Reddy Vs CCE		2009 (13) STR 661			Site formation incidential to mining is not site formation service -composite contract not to be bifurcated
20	Nitish Tools (P) Ltd				2009- TIOL - 513	Customs - Import - Misdeclaration - Under Valuation - Charge of short declaration of quantity upheld as quantity of excess is about 80%, confiscation under Section 111 (l) is in order and penalty reduced - Regarding under valuation, mere enhancement of value is no ground for confiscation of goods and fixation of value or enhancement of value for the purpose of assessment cannot in every case lead to an inference of misdeclaration of value in the absence of any evidence to that effect. As the enhancement of value is on the basis of higher contemporaneous import price, penalty is set aside.
21	Aparna Paper Processing Industry				2009 - TIOL - 520	Service Tax – Management Consultancy – Demand without explaining the activity – cannot be sustainable
22	Bayforge Limited		2009 (14) STR 210		2009-TIOL-649	C&FA - Persons procuring orders cannot be considered as C&F Agents
23	K.R. Alloys		2009 (14) STR 164			ST Paid by principal - Agent need not pay
24	Entex (P) Limited	2009 (236) ELT 294				Compounded levy scheme - duty paid, after adjusting abatement,instead of claiming abatement - Held as correct
25	GTN Exports	2009 (236) ELT 110				EOUs entitled for cenvat credit and refund thereof
26	Chennai Bottling Co. Ltd	2009 (236) ELT 182				Related person - NO appeal filed agaisnt previous decision - matter attained finality
27	SRC Projects		2009 (15) STR 463		2009-TIOL-650	Service tax - adjustment of excess service tax paid against the liability for later period - in view of divergent views held in different decisions of the Tribunal cited by the parties, it was appropriate and necessary that the Commissioner (Appeals) had heard the appeal without insisting on any predeposit - matter remanded.
28	Thriveni Earthmovers (P) Ltd		2009(15) STR 393		2009 - TIOL - 683	Service Tax - Movement of limestone and rejects in the mining area undertaken by the appellants are covered by the entry ‘mining of mineral, oil, gas' and that the said activity cannot be taxed under ‘cargo handling service' for the period prior to introduction of the levy under the category ‘mining of mineral, oil, gas' on 1 June 2007. In several decisions, this Tribunal has held that when an activity comes under the service tax net with effect from a certain date the same activity could not be subjected to tax under a pre-existing category unless the scope of the pre-existing categories of service is simultaneously modified.
29	BSNL		2009 (14) STR 674			CG installed in a different SSA - credit taken in another SSA - Technological features to examined - remanded
30	BSNL		2009 (14) STR 699			Credit tranferred by CSD - CSD is not first stage dealer - regn not required
31	Sri Sai Krishna Travels		2009 (14) STR 686			Rent a cab service - Meter reading based taxi - Not liable - stayed
32	Iswarya Ads	2009 (242) ELT 470	2009 (16) STR 78		2009-TIOL-928	Service Tax - Advertising Agency Service - Appeal to Commissioner (Appeals) - Power to condone delay - Under Section 85 (3) of the Finance Act, 1994, the statutory period of limitation for filing an appeal is 90 days and the period which the authority is empowered to condone is further 3 months after the expiry of 90 days period. The Commissioner (Appeals) has wrongly applied provisions of sub-section (1) of Section 35 of the Central Excise Act, 1944. Matter remanded for fresh orders.
33	Capital Color Lab		2009 (14) STR 785			Photography Service - When dispute pending with Com(A), Commissioner cannot review the order
34	Delta Projects		2009 (15) STR 159			Interior decorator service - execution not liable to service tax - stay granted
35	Pearl Packaging		2009 (15) STR 171			Blending and packaging - BAS - Processing for client taxable only subsequently - stay granted
36	Sulabh International		2009 (16) STR 49		2009 - TIOL - 1086	Service tax – Construction of pay and use toilets for public use not liable to service tax – Issue clarified by Board's Circular dated 23.10.2006 – Full waiver of pre-deposit and stay granted
37	Sharadha Terry Products				2009 - TIOL - 1076	Import of service - Liable only from 18.04.2006
38	Ganga Parameswari Spinners	2009 (239) ELT 196				Clandestine Removal
39	HCL Peripherals	2009 (239) ELT 287				Thin client is computer
40	Nagarjuna Constructions				2009 - TIOL - 1156	Service Tax – Laying of pipelines for drinking water supply projects, prima facie not leviable to tax under Commercial or Industrial Construction Service – Full waiver of pre-deposit and stay granted
41	Samrudhhi Industries	2009 (242) ELT 434			2009-TIOL-1213	Pipes were utilized for supply of water from the reservoir to the water treatment plant and from there partly for human consumption and partly for industrial use - Explanation to sr.no.7 of notification no.6/06CE clarifies that water treatment plant does not include a plant supplying water for industrial purposes –merely because the word “plant” has not been used in clause 3, sr. no.7 of notification 6/2006-CE, the same could not be said to have been excluded from the explanation - prima-facie arguments against the confirmation of duty demand is not convincing – Pre-deposit ordered of duty amount of Rs.5.54 crores – however, since appellants are disputing the interpretation of the provisions regarding the exemption notification, the complete waiver for penalty.
42	GTN Exports	2009 (240) ELT 53				EOU - Transititional credit - permissible
43	Prince Foundations (P) Lited				2009-TIOL-1143	Construction - Works Contracts - liable only from 01.06.07 - Remanded
44	Sri Ganesh Steel Rerolling Mills	2009 (240) 297				Duty paid under protest during investigation - Reund - Unjust enrichment - Time bar
45	Devi Metal Works	2009 (240) ELT 265
46	Sri Venkatesa Mills	2009 (240) ELT 243
47	Wellspun India Limited				2009-TIOL-1313	CE – Refund of Unutilized amount in PLA - the money is that of the assessee and can be claimed by him without attracting the provisions of refund claim:
48	Sheriff Motors				2009-TIOL- 1571	Service tax – Service tax paid on GTA service availed for transport of vehicles from factory to show room available as credit for authorized service station attached to show room – No merit in revenue appeal
49	RKS Motors		2009 (16) STR 36			Commission received for promoting auto loan - BAS - Manufacturer paid ST - Stayed
50	Sri Venkanna Motors (P) Ltd		2009 (16) STR 34			Service tax – Service tax paid on GTA service availed for transport of vehicles from factory to show room available as credit for authorized service station attached to show room – No merit in revenue appeal
51	Sify Technologies Limited		2009 (16) STR 63			Errors in reporting - No short payment - Issue remanded
52	Ulaganayaki Amman	2009 (241) ELT 537				Order in ROM Petition
53	Amman Match Works		2009 (16) STR 194			GTA - Penalties set aside
54	Samrudhhi Industries	2009 (242) ELT 321 HC			2009-TIOL-600 HC	WP Dismissed
55	Sharadha Terry Products				2009-TIOL-1769	Service Tax - Services received outside India - Date of Tax liability - After the enactment of Section 66A, a person who is resident in India or has business in India becomes liable to pay service tax when he receives services outside India from a person who is non-resident or is from outside India. Before enactment of Section 66A it is apparent that there is no authority vested by law to levy service tax on a person who is resident in India, but who receives services outside India. (Para 3)
56	Bio Compus				2009 - TIOL - 1805	Training in specialised software in bio technology - claimed as vocational training - Remanded
57	Obli Spinning Mills (P) Limited		2009 (16) STR 399			Exparte dismissal for non compliance - Order recalled
58	Vahini Cabs		2009 (16) STR 352			Exparte ordered - Remanded to give hearing
59	Veesons Energy Systems (P) Ltd		2009 (16) STR 290			Production of goods "for" the client - taxable only from 16.06.2005. Stay granted

Reported Cases 2008

S.No	Name of the party	ELT	STR	RLT	TIOL	Issue in brief
1	Rubfila	2008 (221) ELT 117 7th Jan				Marketability of waste
2	Samturbo Industry Limited			2008 (84) RLT 67 7th Jan		57 CC -If credit is reversed, no need to pay 8 %
3	Ponneri Steel Industries	2008 (221) ELT 290 - 14th Jan				Personal penalty cannot be imposed on companies
4	Bayforge Limited		2008 (9) STR 55 1st Jan			Clearing and forwarding Agent - Service Tax
5	K.R. Alloys Ltd		2008 (9) STR 57 1st Jan			S.Tax - Management consultancy
6	Thiyagaraja Mills		2008 (9) STR 75 1st Jan			GTA / PLA
7	Ramanasekar Steels Ltd		2008 (9) STR 132 15th Jan			S.T. Penalties
8	M.Ramakrishna Reddy		2008 (9) STR 139 15th Jan			Mining Services - Service Tax
9	Soundararaja Mills Ltd		2008 (9) STR 183 15th Jan			GTA - PLA
10	SKF Boilers & Driers P Ltd		2008 (9) STR 206 15th Jan			Service Tax
11	Revival Clothing	2008 (222) ELT 56 4th Feb 08		2008 (84) RLT 407		Encashment of bank guarantee - refund
12	Rupa & Co	2008 (225) ELT 552			2008 - TIOL 313	Central Excise – Cenvat Credit – Depot invoices – to be accepted Depots are not dealers and need not get registered – if the invoices were defective, Commissioner should have asked for correction. Actual paymemnt of duty proved – credit cannot be denied.
13	Nagammai Cotton Mills (P) Limited		2008 (10) STR 77			GTA Service tax can be paid thru cenvat credit
14	Febin Advertisers		2008 (10) STR 50
15	IFF	2008 (224) ELT 79				No interest for reversing CENVAT- due to poor quality of inputs
16	Adecco people one india		2008(10) STR 74			Exemption denied - on no proof - but Payments received in foreign exchange- on undertaking to produce the same- stay granted
17	Erode Rana Textile Processors		2008 (10) STR 536			Cross examination
18	N B Footwear		2008 (10) STR 526
19	Hindustan Coca Cola Beverages (P) Ltd	2008 (226) ELT 131
20	Madras vanaspati Limited		2008 (10)STR 421			Leasing of machinery - stay order
21	CCS Vs Whitehouse Cotton Industries Limited	2008 (226) ELT 418				Appeal beyond the scope of sCN is not maintainable
22	IM Gears VS CCE		2008 (10) STR 577			GTA - Credit of outward freight - PD Ordered
23	Nithyananda Electronics Vs CC			2008 (86) RLT 659
24	BSNL Vs CCE				2008-TIOL-1002	Technological features of the service shd be taken into cognizance while allowing cenvat credit
25	Nithyananda Electronics Vs CC			2008 (86) RLT 881		S.Tax penalties set aside
26	CCE Vs coimbatore kanaraga. Urimaiyalargal trust		2008 (8) STR 120			whether trust is a commercial concern
27	Sterling boitech Vs CCE	2008 (227) ELT 271				Rule 6 issue
28	ICMC Corp Ltd Vs CCE			2008 (86) RLT 590		if proportionate credit is reversed no need to pay 10% under rule 6
29	HCL Peripherals			2008 (87) RLT 148		Kiosk is a computer
30	IGP Engineers			2008 (87) RLT 208	2008-TIOL-1234	Wrong refund claim - not hit by time bar
31	Havukkal				2008-TIOL-1246	One cannot suppress a fact, which is not within his knowledge - Bonafide belief based on VAOs certificates
32	Arjay Apparel Industries Ltd. Vs CCE				2008-TIOL-1274	during forfeiture period - duty can be paid thru cenvat credit
33	Taneja Aerospace & Aviation Ltd	2008 (228) ELT 159				Customs Valuation - Technical know how fee - not to be incuded
34	Galaxy (Tuticorin) Agencies Vs CCS		2008 (11) STR 398			Violation of Natural justice - Remanded
35	Ramakrishna Reddy Vs CCE		2008 (11) STR 345			during forfeiture period - duty can be paid thru cenvat credit
36	Anithadevi Spinning Mills (P) Ltd. Vs CCE	2008 (229) ELT 104				Excess amount collected by consignment agents - Hit by Section 11 D

Reported Cases 2007

S.No	Name of the party	ELT	STR	RLT	TIOL	Issue in brief
1	Rane TRW Steering Systems Limited Vs CCE			2007 (81) RLT 13		Interest - NO determination of duty under 11 A - No interest is payable
2	Tejus Badri & Jatin Badri Co Vs CCE			2007 (80) RLT 595		Service Tax - C & F Agent - reimbursement of expenses is not subject to service tax - Stay granted
3	Sri Venkatesa Mills Limited Vs CCE			2007 (80) RLT 824 18th June 07		Service Tax - C & F Agent - Demand for 97-98 - Set aside by following LH Sugar case. 2007 (80) RLT 824 18th June 07
4	Nebulae Health Care Ltd	2007 (209) ELT 125 12th Mar 2007		2007 (78) 74 1st Jan 2007		SSI Exemption - Cenvat/Modvat - Denial of benefit for violation of condition of relevant notifications prohibiting availment of Cenvat/Modvat credit of duty paid on inputs used in manufacture of specified goods. As per conditions of relevant Notifications, value of clearances of goods bearing brand name of third parties, not to be taken into account in determining aggregating value of clearances under relevant Notifications - Hence, no infirmity in availment of benefit of exemption by appellant.
5	Devi Metal Works	2007 (207) 280 8th Jan 2007				Appellant not liable to pay duty as job worker, and another concern who paid duty, was liable to pay the same under compounded levy scheme - Waiver from pre-deposit granted - Recovery stayed - Section 35F
6	Hindustan Coca Cola Beverages Pvt Ltd			2007 (78) 151 8th Jan 2007		Excisability -- Scrap of glass bottles - Scrap of crown corks - not excisable as same is not result of process of manufacture - appeals and stay applications allowed.
7	Sooraj Graphics	2007 (207) 404 12th Jan 2007				Redemption fine and penalty - Quantum of - Import of consumer goods viz. second-hand photocopier without specific licence - Quantum of fine should not exceed 15% of the value of the goods - Quantum of penalty should be around 10% of the fine - Fine and penalty reduced to Rs. 65,000/- and Rs. 6,500/- respectively - Sections 112 and 125 of Customs Act, 1962.
8	Link International Travel Agents (P) Ltd		2007 (5) 105 15th Jan 2007			Order - Speaking order - Service tax - Submissions and citations recorded but not considered in operative part of order delivered ex parte by rejecting request for further adjournment - Order held as not speaking one and matter remanded.
9	Shanthi Gears			2007 (78) 225 15th Jan 2007		Assessable value -section 4 of CEA ,1944- Tailor made goods - Notional interest - Burden of proof - advance received from buyer of tailor made goods - burden to prove nexus between price and advance is on Department even in case of tailor made goods- notional interest on advances not to be added as Department has not proved that advance has depressed the price - revenue's appeal dismissed.
10	ICI India Ltd	2007 (207) 543 22nd Jan 2007				Refund claim on ground of final product exported admissible only if final product dutiable but exported under bond - No valid challenge against decision of lower authorities - Alternate claim of rebate not raised before lower authorities not within jurisdiction of Tribunal - Rule 5 of Cenvat Credit Rules, 2004
11	BHEL			2007 (78) 281 22nd Jan 2007		Interest – section 11AB of CEA,1944- not leviable in respect of duty paid on supplementary invoice issued on finalisation of sale price in terms of price valuation clause in sale contract- appeal allowed.
12	Salem Weldmesh			2007 (78) 316 22nd Jan 2007		Pre-deposit- section 35F of CEA , 1944- Exemption – Notificatio No.83/94-CE- weld mesh- manufactured on job work basis by appeallent and supplied to poultry farm owners who used it for making poultry cages – benefit of the notification , prima-facie, admissible though undertaking was not filed by poultry farm owners in terms of the notification – pre-deposit waived more so when admissible input credit will be more than duty demand on weld mesh.
13	SISCOL			2007 (78) 317 22nd Jan 2007		Modvat credit goods- Rule 57 Q C.Ex Rules, 1994- UPS revenue law times and Battery – required for supply of stand by power; Tubes, Pipes and Fittings- used for conveying water, steam and air to different machines/pipes; Cable tray – used for facilitating transmissions of power through cables ; Centralised lubricating system- enabled smooth functioning of machines; Blower fan, Dedusting fan and Air blower – parts of captive power plant ; Why heat used for bonding refractory bricks in furnance; Vibrating feeders- material handling equipments participating in manufacturing process; Refractory bricks – parts of furnace; jaw crusher- used in blast to crush raw material; eligible capital goods.
14	United Telecoms Ltd	2007 (207) 698 29th Jan 2007				Change of view to file an appeal not a reason to condone delay - Appellant company being managed by Directors, inability of Manager not acceptable - Application filed only to take advantage of subsequent decisions - Delay not condoned - Application lacking sufficient cause and suffering from lapse and negligence rejected - Appeal dismissed - Sections 35B(5) and 35C of Central Excise Act
15	Pullicar Mills Ltd	2007 (208) 476 19th Feb 2007				Adjudication - Cross-examination - Clandestine removal of goods alleged on basis of statement of person claiming to be Technical Director of appellant company and documents authored by him.Commissioner expressed his inability, to allow such an opportunity on account of embargo placed on him under Section 33A of Central Excise Act, 1944 - Impugned order set-aside and matter remanded for de novo adjudication after giving reasonable opportunity of cross-examination.
16	IGP Engineers			2007 (78) 741	2007 - TIOL - 171	Exemption – customs- Notification No.21/2002- Hollow bars of nickel alloy – composed of 90% nickel and rest other alloys – classifiable a a nickel bars under Heading 7505.12 10 of CTA ,1975-covered by description nickel and of nickel against Sl. No.438 of Table to Notification- revenue’s appeal dismissed.
17	Tempest Advertising (P) Ltd	2007 (5) 312 15th Feb 2007				Valuation (Service tax) - Documents for levy of Service tax and calculation of taxable value - Demand raised based on gross receipts shown in Profit and Loss Account and details in Income-tax returns - Proceedings dropped by original authority but Service tax demanded by Commissioner in revision proceedings - HELD : Details filed in Income-tax returns different from those required in Service tax returns - Service tax required to be calculated on total receipts - Amounts due from customers not to be included in taxable value for levy and demand of Service tax - Original order upheld - Sections 67 and 73 of Finance Act, 1994.
18	Sarealee Household & Bodycare (I) Pvt Ltd	2007 (210) 42 2nd Apr 2007	2007 (5) 381 1st Mar 2007			Refund - Unjust enrichment - Price increase evidenced by commercial invoices - Excise duty paid by assessee kept as “receivable from Govt. or current assets” in their books of accounts, as shown by Chartered Accountants Certificates and books of account - Authenticity of documentary evidence adduced by assessee, not rebutted - Presumption of unjust enrichment under Section 12B of Central Excise Act, 1944 successfully rebuted by assessee - Section 11B.
19	N. B. Footwear	2007 (209) 102. 12th March 07				Demand - Exemption, denial of, under Notification No. 32/97-Cus. - Jurisdiction of Deputy Commissioner of Customs to demand duty under Section 28 of Customs Act, 1962 - Provisions of Section 28 ibid have overriding effect on rules made under Section 156 ibid [Rule 8 of Customs (Import of Goods at Concessional Rate of Duty) Rules, 1996] if same inconsistent with mandatory Provision of Act - Deputy Commissioner can demand duty under Section 28 ibid consequent to denial of exemption
20	Amarjothi Spinning Mills Ltd	2007 (209) 302 19th March 07		2007 (79) 69 12th Mar 07		Refund
21	Hindustan Coca Cola Beverages Pvt Ltd	2007 (209) 238 19th March 07		2007 (78) 842 26th Feb 2007		Valuation (Central Excise) - Aerated water supplied to another person under a contract for further supply of same as a free gift along with other item - Aerated water is specified under notification issued under Section 4A(1) of Central Excise Act, 1944 and also Governed by Standards of Weights and Measures Act, 1976 and Rules framed thereunder - Assessee required to declare retail sale price of goods - Valuation of goods governed by Section 4A ibid and not Section 4 ibid.
22	Karanja Industries Pvt Ltd	2007 (209) 225 19th March				Stay/Dispensation of pre-deposit - Exemption - Option - Notification No. 6/2002-C.E. - Clearance based exemption upto 3500 MT of production under Sl. No. 86 of notification, thereafter Tariff rate of 16% prescribed - Appellants after crossing limit of 3500 MT, availed exemption under Sl. No. 86A which provide 12% of effective rate irrespective of quantity of clearance - No bar in notification to avail exemption under Sl. No. 86 and 86A in same financial year - Prima facie case in favour of appellants - Pre-deposit of duty amount waived and its recovery stayed - Section 35F of Central Excise Act, 1944
23	Vignesh Alloys				2007 - TIOL - 111 HC	Withdrawal of facilities under Notification 36/2006 CENT - Interim stay ordered
24	Surana Metals & Steels (I) Ltd			2007 (79) RLT 267 1st Apr 2007	2007 _ TIOL - 450 Trib	Reference to larger bench – compound levy-section 3A and 38A of CEA, 1944 – Rule 96ZO, 96ZP and 96ZQ omitted on 1.3.2001- i, effect of omission of section of 3A ibid and Rules considering provisions of section 38A ibid and section 6 ibid, on proceeding pending on 11.5.2001 and ii, whether omission can be considered repeal within meaning of section 6 ibid , reffered to larger to larger bench.
25	Dong A. Automotive Pvt Ltd	2007 (210) ELT 299 S.C. 9th Apr 2007				Settlement of case - Immunity from interest and penalty - Charges of wrong availment of Cenvat credit and for recovery of duty for non-amortisation of cost of moulds and dyes received free of cost from customers, admitted by applicant and entire duty paid before issue of show cause notice - However, duty paid after two years from date of duty liability - Simple interest @ 10% per annum to be paid by applicant from the date of duty was due till paid - However, immunity from penalty to be granted - Section 32K of Central Excise Act, 1944

Reported Cases 2006

S.No	Name of the party	ELT	STR	RLT (Issues upto 21.8.2006)	TIOL	Issue in brief
1	S.M.M.Steel Re-rolling Mills Pvt. Ltd.	2006 (193) ELT 462 - Tri - Blr (23rd Jan 06)		2006 (73) RLT 150 -Tri-Blr (20th March 06)		Production capacity based duty - Annual capacity of production - Abatement of duty - Intimation regarding closure and re-starting of factory received in time in office of Superintendent of Central Excise - Superintendent’s office and Divisional office situated in same premises - No reason as to delayed receipt of intimation to Assistant Commissioner - Denial of abatement from duty not justified - Erstwhile Section 3A of Central Excise Act, 1944 - Rule 96ZO(2) of erstwhile Central Excise Rules, 1944
2	Billiards Point	2006 (196) ELT 118 - Tri - Chennai (3rd April 2006)				EXIM - Confiscation - Second-hand machinery - Attempt to import without licence - Commissioner (Appeals) set aside confiscation on ground that Bill of Entry was filed on 9-9-2004 after coming into force of new Foreign Trade Policy 2004-2009 under which import of goods in question was made free - Question if shipment of goods on 1-8-2004 by foreign supplier acting on importer's purchase order, would constitute attempt of import on the part of importer rendering goods liable to confiscation under Section 111(d) of Customs Act, 1962 in terms of provisions of earlier EXIM Policy 2002-2007, not addressed by Commissioner (Appeals) - Impugned order set aside - Matter remanded.
3	BSES Kerala Power Ltd.	2006 (196) ELT 246 - Tri- Blr (10th Apr 2006)		206 (73) RLT 457 -Tri-Blr (10th April 06)	2005 - TIOL - 971	Demand - Valuation (Customs) - Transaction value - Enhancement of - Rotor assembly imported contain inbuilt SAC combustor - Value of SAC combustor separately shown in the commercial invoice - Appellants’ contention that they cannot be asked to pay duty on item, which have not been imported accepted - Demand by enhancing value of the goods not sustainable - Sections 14 and 28 of Customs Act, 1962.
4	Sree Lakshmi Steel Re-rolling Mills	2006 (197) ELT 40 - Tri. - Chennai - 8th May 2006				Penalty - Default in payment of duty under compounded levy scheme - Quantum of penalty - Minimum penalty imposable under 4th proviso to Rule 96ZP(3) of erstwhile Central Excise Rules, 1944, is Rs. 5,000/- where monthly duty defaulted is less than Rs. 5,000/-, but where monthly duty defaulted is above Rs. 5,000/- quasi-judicial authority has discretion to impose penalty lesser than such duty and higher than Rs. 5,000/- having regard to facts of the case - Quantum of penalty modified having regard to extent of delay in payment of duty - Erstwhile Section 3A of Central Excise Act, 1944
5	Premier Instruments & Controls Ltd.,	2006 (198) ELT 69 - Tri. - Chennai (5th June 2006)		2006 (72) RLT 157 -Tri-Chennai- (9th Jan 06)		Parts and accessory - Shafts, gears, flywheel assemblies, not shown to be cleared as part/ accessory of speedometer / measuring apparatus are classifiable under more specific Heading 84.83 of Central Excise Tariff by virtue of Chapter Note 2(a) ibid, and not under Heading 90.33 ibid. Printed circuit board, without mounting or connection to mechanical / electrical component are classifiable under Heading 85.34 of Central Excise Tariff by virtue of Chapter Note 2(a) ibid, and not under Heading 90.33 ibid.
6	Tab India Granites	2006(198) ELT 432- Tri- Chennai (19th June 2006)				Stay/Dispensation of pre-deposit - EOU, 100% EOU - Damage of goods in transit - Tiles cleared for export damaged during transit from appellant’s factory to Chennai Seaport and taken back to factory - Goods being available in factory, prima facie benefit of exemption under Notification No. 24/2003-C.E., dated 31-3-2003 available to appellant - Prima facie merits of case in favour of appellant - Stay granted - Section 35F of Central Excise Act, 1944.
7	BAPL Industries Ltd.	2006 (198) ELT 587 (tri. - Chennai) - 26th June 2006		2006 (72) RLT 691 -Tri- Chen (13th Feb 06)		Such credit taken on the basis of manufacturer’s own triplicate copy of invoice under which the final product was originally cleared. These invoices are invoices of input- manufacturer. Since as per Rule 11(3) and Board’s instructions only extra copies of invoices are not meant for Cenvat purposes, it cannot be said that during the disputed period there is no provision of law for using triplicate copy for Cenvat purpose. Hence triplicate copy was valid for Cenvat purpose during the disputed period. CBEC’s Instruction No. 4 of Supplementary Instructions 2005.
8	Nagarjuna Construction Co. Ltd.	2006 (199) ELT 155 - Tri. - Blr (3rd July 2006)		2006 (74) RLT 713 - Tri- Blr (12th June 06)		Refund - Limitation - Valuation - Prices subject to retrospective revision - Agreement with buyers corroborating it and assessee also having paid higher duty on occasion of upward revision of prices - HELD : On downward revision of prices, department could not reject refund claim - It was not time barred more so as department had information about prices being provisional - Departmental plea that since bond under erstwhile Rule 9B of Central Excise Rules, 1944 was not executed, hence impugned assessment was not provisional, rejected - Section 11B of Central Excise Act, 1944.
9	Global Yarn Spinners	2006 (199) ELT 330 - Tri. - Chennai - 10th July 2006				Stay/Dispensation of pre-deposit - Valuation (Central Excise) - Related person - Prima facie finding of relationship not sustainable on finding that four Directors of buyer-company held a part of shares in assessee- company - Waiver of pre-deposit and stay of recovery granted in respect of duty and penalty - Sections 4 and 35F of Central Excise Act, 1944.
10	Mc Dowell & Co. Ltd.	2006 (199) ELT 368 - Tri - Blr (10th July 2006)				No nexus between royalty and food flavours - Royalty not includible in assessable value - Section 4 of Central Excise Act, 1944. Excisability - Food flavours - Both essences and resultant product food flavour fall under same tariff heading 3302 - Different proportions of ingredients give different flavours - Completely different or new product does not emerge - Essences remain essences - Process of mixing of essences not manufacture and the resultant food flavour not excisable - Goods emerging from processes not amounting to manufacture not excisable even if marketable - Sections 2(f) and 3 of Central Excise Act, 1944.
11	S.V.M.Textile Mills	2006 (199) ELT 270 - Tri. - Chennai (10th July 2006)		2006 (74) RLT 70 - Tri - Chen - (1st May 06)		Refund of accumulated Cenvat credit - Clearances of goods (made ups) for export made from manufacturer -exporter’s premises and not from appellant’s premises - Refund claim not deniable on ground that export goods were not removed from appellant’s factory - Rule 5 of Cenvat Credit Rules, 2002/2004 - Rule 57AC of erstwhile Central Excise Rules, 1944.
12	Prime Pharma Tech (India) Ltd.	2006 (199) ELT 309 - Tri. - Blr (10th July 2006)				Stay/Dispensation of pre-deposit - Amount of 8% of sale price of exempted goods under Rule 57CC of erstwhile Central Excise Rules, 1944 is not duty and not required to be deposited with Department in terms of Section 11D of Central Excise Act, 1944 - Prima facie case in favour of applicant - Stay application allowed - Section 35F ibid.
13	Rane Nastech Ltd.	2006 (199) ELT 266 - Tri. - Chennai (10th July 2006)		2005 (68) RLT 190 - Tri-Chenn- (9th May 05)		Valuation (Customs) - Technical know-how fee for manufacture of licenced product, includibility of - Requirement of including such fees in assessable value of imports under Rule 9(1)(c) of Customs (Valuation) Rules, 1988 not satisfied by observations that without technical know-Fee paid held not includible further as no provision in agreement cited indicating such fee payable directly or indirectly as condition of sale of imported components - Section 14 of Customs Act, 1962.
14	Rupa & Co.	2006 (199) ELT 282 - Tri.- Chennai (10th July 2006)				Cenvat - Transitional provisions for textiles and textile articles - Inputs lying in stock or in process or contained in finished products lying in stock as on 31-3-2003 entitled to benefit of Rule 9A of erstwhile Cenvat Credit Rules, 2002 - “Stock of inputs” means physical input content of such fabrics and cannot include any input which became waste in conversion of yarn into fabrics - Benefit not available to input not physically lying in stock. Interpretation of statute - Transitional provision should be strictly construed - Rule 9A of erstwhile Cenvat Credit Rules, 2002.
15	Sam Turbo Industries Ltd.	2006 (199) ELT 281 - Tri. - Chennai (10th July 2006)				Stay/Dispensation of pre-deposit - Cenvat/Modvat - Appellants removed inputs to job worker under Rule 57F of erstwhile Central Excise Rules, 1944, whereas, demand appears to be based upon finding that procedure under Rule 56B ibid, not followed - Strong prima facie case made out - Waiver from pre-deposit granted - Recovery stayed - Section 35F of Central Excise Act, 1944. - The assessee was following the procedure under Rule 57F(3) and was claiming the benefit of that provision of law.
16	G.A.Jolli	2006 (199) ELT 665 - Tri. - Chennai (24th July 2006)				Departmental clarifications - Date of effect when C.B.E.C. circulars are clarificatory then they are retrospective in operation - Section 151A of Customs Act, 1962.Stay and waiver of pre-deposit - Doubtful case when appellants have not made a case free from doubt, there cannot be full waiver of pre-deposit and stay of recovery - Section 129E of Customs Act, 1962.
17	Sam Turbo Industries Ltd.,	2006 (200) ELT 87 (tri - Chennai) - 7th Aug 2006				Penalty - Default in payment of duty - Fortnightly facility - Payment by specified date is mandatory, and for default therein, exemplary penalty is imposable - Rules 8 and 25 of Central Excise Rules, 2002.Penalty - Quantum and imposition of - Contravention of mandatory provision attracts exemplary penalty - Rule 25 of Central Excise Rules, 2002.Appeal - Exercise of discretion by lower authority - It should not be interfered by higher appellate authority
18	Rane TRW Steering Systems Ltd	2006 (201) ELT 63 (tri. - Chennai) (4th Sep. 2006)		2006 (74) RLT 740 - Tri- Chen (12th June 06)		Pumps - Power steering pump - Manufactured by sister unit of assessee who after their receipt adding three other items to it - Clearance to Central Government Ordnance Factory as power steering kit, a part of motor vehicle classifiable under Chapter 87 of Central Excise Tariff - As this classification for clearances to other customers not disputed by department, benefit of Notification No. 64/95-C.E., dated 16-3-1995 allowed.
19	Prime Pharma Tech	2006 (201) ELT 568 - Tri - Blr. (25th Sep 2006)				Recovery - Cenvat/Modvat - Common inputs used in exempted and dutiable goods - 8% of value of exempted goods paid, shown in invoice and collected from buyers - HELD: This amount was not duty and was not collected as such - It was not required to be deposited with Government especially as (i) assessee had not availed Modvat credit and (ii) it was added to assessable value on which the duty collected was deposited with Government, and there was no justification in requiring the assessee to deposit it again with government - Section 11D of Central Excise Act, 1944.
20	Salona Cotspin	2006 (201) ELT 592 Tri - Chennai (25th Sep 2006)		2006 (75) RLT 142 -Tri- Chen (10th Jul 06)	2006 - TIOL 1773	Cenvat - Used capital goods - They are different from capital goods as such, and on their removal no duty is required to be paid - Rule 3(4) of Cenvat Credit Rules, 2001/ 2002 - Rule 3(5) of Cenvat Credit Rules, 2004.
21	Erode Rana	2006 (202) ELT 481 -Tri- Chenna- 16th October 2006				Natural justice - Cross examination - When deniable - Show cause notice if not replied, cross examination of witnesses not allowable - Evidentiary material relied upon in framing a case of clandestine removal of goods against appellants furnished by the department to the appellants - in the interest of justice, appellant’s request for a last opportunity to file reply to show cause notice accepted - Appellants directed to file their reply within 30 days - Adjudicating authority directed to make de novo adjudication - Section 35C of Central Excise Act, 1944.
22	Rajeshwari Graphics	2006(202) ELT 506 - Tri-Blr-16th October 2006			2006 - TIOL - 1772	Valuation (Customs) - Second-hand photocopier assemblies - Detailed certificate given by Chartered Engineer after thorough inspection - Certificate contains various remarks with respect to goods imported indicating performance check details, available parts and missing parts - While valuing impugned goods, principles adopted by chartered engineer given in para relating to remarks and conclusions - Value certified by Chartered Engineer to be accepted for valuing second-hand photocopier - Section 14 of Customs Act, 1962.
23	N B Footwear	2006 (202) ELT - 663-Tri- Chennai- 16th October 2006				Appeal - New ground - Jurisdiction - New plea that Order in Original should have been passed by Deputy Commissioner / Assistant Commissioner of Central Excise and not by Customs authorities - In view of Apex Court decision in NTPC [1998 (99) E.L.T. 200 (S.C.)], appellants allowed to raise new plea - Rule 8 of Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996 - Section 129A of Customs Act, 1962.
24	SVM Exports	2006 (203) ELT 52-Tri- Chennai- 6th November 2006			2006 - TIOL - 774	Refund of unutilised Cenvat/Modvat - Refund claim rejected taking note of assessee’s statement in reply to SCN that they had claimed rebate of duties paid on raw materials used in export goods in terms of Rule 18 of Central Excise Rules, 2002 read with Notification No. 41/2001-C.E. (N.T.) despite fact that assessee claimed refund under Rule 5 of Cenvat Credit Rules, 2002 as not in position to utilise credit - Refund application found as one filed under Rule 5 ibid - Matter remanded for considering claim as under Rule 5 ibid clarifying that any averments in reply to SCN have nothing to do with allegation in notice of non-execution of bond, etc., and are irrelevant - Rule 5 of Cenvat Credit Rules, 2004
25	SISCOL	2006(204) ELT275- Tri-Chennai- 11th December 2006			2004 - TIOL - 141	Cenvat/Modvat - Capital goods - UPS & Battery, required for supply of standby power in the event of power failure in plant, are essential for working of plant - Goods are eligible capital goods as defined in Explanation 1 of Rule 57Q of erstwhile Central Excise Rules, 1944 - Rule 2(a) of Cenvat Credit Rules, 2004.Cenvat/Modvat - Denial of credit on ground that relevant documents not produced by appellants - Dispute could be resolved only by scrutiny of connected documents - Matter remanded - Rule 57Q of erstwhile Central Excise Rules, 1944 - Rule 3 of Cenvat Credit Rules, 2004.
26	Renaisannce Creations	2006 (204) elt 429-Tri- Chennai- 18th December 2006				Stay/Dispensation of pre-deposit - Penalty - EXIM - Second hand machinery - More than ten years old - DGFT clarifying that no licence was required - Penalty for import without licence stayed - Section 129E of Customs Act, 1962. Stay/Dispensation of pre-deposit - Bank guarantee given for provisional release for double the amount of duty liability - Importer undertaking to keep it alive till final disposal of appeal - Pre-deposit waived off in spite of prima facie case against importer - Section 129E of Customs Act, 1962.
27	Salem Weldmesh	2006 (204) ELT- 500- Tri- Chennai- 18th December 2006				Stay/Dispensation of pre-deposit - Weld mesh manufactured by assessee-job worker supplied to poultry farm owners for manufacture of poultry cages - No undertaking from any of poultry farm owners produced by assessee to Assistant Commissioner - Prima facie, appellants eligible to benefit of Notification No. 83/94-C.E. - Waiver of pre-deposit granted and recovery thereof stayed - Section 35F of Central Excise Act, 1944.
28	Sri Sabarey Enterprises		2006 (1) STR 314 Tri Chennai (15th March 2006)			Stay/ Dispensation of pre-deposit - Service tax - Clearing and Forwarding Agent - Applicant receive goods from their principal store them in their godown, clear them to buyers, collect payments for sale and transmit the same to principal after taking Commission - Activity covered by definition of Clearing and Forwarding Agent which includes consignment agent - Such service taxable during period of dispute - Prima facie case not in favour of applicants - Applicants directed to pre-deposit respective tax amounts - Section 35F of Central Excise Act, 1944 as applicable to Service tax vide Section 83 of Finance Act, 1994 - Section 65(25) ibid.
29	Rane TRW Steering Systems Ltd	2005 (183) ELT 200 - Tri-Chen (9th May 05)	2006 (3) STR 581 (15th Aug 2006)			Service Tax - Consulting Engg - Stay
30	Sri Venkatesa Mills		2006 (3) STR 687 (1st Sep 2006)			Stay/Dispensation of pre-deposit - Service tax - Clearing and forwarding agent - Commission paid by appellants to brokers who were rendering “clearing and forwarding” services to assessee - Nature of services rendered by appellant’s brokers is similar to the service rendered by agent in case of Prabhat Zarda Factory v. Commissioner [2002 (145) E.L.T. 222 (Tribunal)] - Appellants not having strong prima facie case - However, appellant directed to pre-deposit 50% of adjudged tax on account of fact that their factory not functioning for last three years - Section 35F of Central Excise Act, 1944.
31	Sieger Spintech Equipments P Ltd		2006 (3) STR 736 (15th Sep 2006)			Penalty (Service tax) - Imposition of - Appellants made payment of Service tax before the issue of show cause notice, hence penalty under Section 76 of Finance Act, 1994 on delayed payment, not imposable - Delay in filing of return was occasioned by delay in getting registered with Department, hence, penalty under Sections 77 and 78 ibid not imposable.
32	Yazaki Wiring Technologies India (P) Ltd		2006 (3) STR 779 (15th Sep 206)			Stay/Dispensation of pre-deposit - Demand - Service tax - Consulting engineer’s service - Agreement between applicants and foreign collaborator was to pay income tax by applicant - Revenue’s contention that applicant was authorized to pay service tax prima facie not sustainable, scope of the agreement having been extended in unwarranted manner - With regard to other part of demand, appellant’s submission that demand is beyond the scope of show cause notice has not been successfully countered - Prima facie case made out by appellants - Pre-deposit waived and recovery thereof stayed - Section 35F of Central Excise Act, 1944 as applicable to Service tax vide Section 83 of Finance Act, 1994.
33	Bio Compus		2006 (4) STR 108 (15th Oct 2006)			Stay/Dispensation of pre-deposit - Service tax - Commercial training or Coaching Services - Applicants carrying out specialized courses meant for graduates and post-graduates in the fields of bio-technology, pharmacy and other related inter-disciplinary fields - Prima facie training imparted by applicant cannot be said to be for computer training alone - Applicants directed to pre-deposit Rs. 1 lakh out of total demand of Rs. 7,40,200/- only - Section 35F of Central Excise Act, 1944 as applicable to Service tax vide Section 83 of the Finance Act, 1994.
34	Ramanasekar Steels Ltd.,		2006 (4) STR 100 (15th Oct 2006)			Stay/Dispensation of pre-deposit - Service tax paid and liability there-of not in dispute - Interest demanded and penalty imposed - HELD : Interest provision mandatory - Prima facie case not in favour of appellant against demand of interest - Recovery of interest not stayed - Stay granted for recovery of penalty - Section 35F of Central Excise Act, 1944 as made applicable to service tax vide Section 83 of Finance Act, 1994 - Sections 76 and 77 ibid.
35	Star Vision		2006 (4) STR 282 (15th Nov 2006)			Stay/Dispensation of pre-deposit - Penalty (Service tax) - Delay in payment of Service tax - Assessee did not discharge their tax liability in full even after visit of officers - Intent to withhold payment to exchequer cannot be ruled out - Liability to penalty under Section 78 of Finance Act, 1994 correctly determined - Question whether maximum penalty to be imposed under Section 78 ibid, to be examined at final hearing stage - Applicant directed to pre-deposit Rs. 1 lakh - Pre-deposit of penalties under Sections 76 and 77 ibid waived - Section 35F of Central Excise Act, 1944 as applicable to Service tax vide Section 83 of Finance Act, 1994.
36	Rain Industries		2006 (4) STR 290 (15th Nov 2006)			Demand (Service tax) - Limitation - Show cause notice issued after retrospective amendment brought in Finance Act to bring activity of carriage of goods by transport operators in Service tax net - Demands cannot be-confirmed - Sections 116 and 117 of Finance Act, 2000 - Section 73 of Finance Act, 199
37	City Travels		2006 (4) STR 543 (1st Dec 2006)			Stay/Dispensation of pre-deposit - Service tax - Services rendered as tour operators and service charges collected by appellant - Prima facie case against levy of Service tax on tour operator service not made out by appellant - Partial stay granted - Section 35F of Central Excise Act, 1944 as applicable to Service tax vide Section 83 of the Finance Act, 1994
38	Tempest Advertising		2006 (4) STR 463 (T-Blr) (1st Dec 06)		2007-TIOL - 145	Stay/Dispensation of pre-deposit - Service tax leviable only on amounts received by appellants and not on amounts still due from parties - Stay application allowed granting waiver of pre-deposit and staying its recovery - Section 35F of Central Excise Act, 1944 as applicable to Service tax vide Section 83 of Finance Act, 1994.
39	City Travels		2006 (4) STR 551 (15th Dec 06)			Stay order - Modification of - Service tax - Humane ground - One of the buses operated by applicant gutted in fire causing death of two crew members - Pre-deposit amount of Rs. 5 lakhs reduced to Rs. 1 lakh on humane ground - Sections 35C and 35F of Central Excise Act, 1944 as applicable to Service tax vide Section 83 of Finance Act, 1994
40	Indo steel Re-rollers			2006 (72) RLT 36 -Tri- Chen (2nd Jan 06)		Adjudication – speaking order- abatement of duty on account of closture of mill working under compounded levy scheme denied through letter- denial of issue of speaking order does not stand to test of law and of principles of natural justice- case remanded.
41	SMT Exports			2006 (72) RLT 163-Tri- Chen (9th Jan 06)		Section 11AC of CEA , 1944 – Export – Rule 19 of Ex rules, 2002 – duty free raw materials procured under notification No. 43/2001- CN(NT) – final products manufactured not exported but cleared in local market – appellants had intend to evade payment of the duty on raw materials – penalty impossible , however , as duty was paid shortly after adjudication penalty reduced – appeal disposed of.
42	Southern Pressure Castings	2055 (188) ELT 182 -Tri- Chen (17th Oct 05)		2006 (72) RLT 166- Tri- Chen (9th Jan 2006)		Demand - Clandestine removal of Cenvat availed inputs to sister concern without payment of duty - BIN cards entries cannot be treated merely as ‘private’ accounts as they were presented to an international organisation (ISO) for a purpose affecting public - Assessee has no case that they paid duty on inputs shown in BIN cards as removed - Demand sustainable - Section 11A of Central Excise Act, 1944.Penalty - Clandestine removal of Cenvat availed inputs - Penalty of equal amount of duty sustainable under Section 11AC of Central Excise Act, 1944.
43	Pricol			2006 (73) RLT 702- Tri-Chen (24th April 06)		Appeal – Condonation of delay – section 35 of CEA,1944- order in original was dispatched on 1.5.1997, Commissioner (Appeal) estimated a delay of 16 days in filing appeal and dismissed it as time barred- since issue is covered in fovour of appealents by larger bench’s decision-delay is condoned.
44	Pricol			2006 (74) RLT 308- Tr-Chenn (15th May 06)		Cenvat credit- Rule 2 of Cenvat credit Rules, 2002- plastic crates trays- used for handling material within factory- capital goods and not inputs- Revenue’s appeal allowed and assessee’s appeal dismissed.
45	Gopal Repackers				2006 - TIOL - 1465	Central Excise – Demand – When the duty was proposed to demanded from Ms.CPCIL in SCN, ultimately in the adjudication order the duty was demanded from appellant such demand and is clearly unsustainable in law.

Reported Cases 2005

S.No	Name of the party	ELT	STR	RLT	TIOL	Issue in brief
1	Mcdowells	2005 (182) ELT 114 - Tri-Blr (4th April 05)				Stay/Dispensation of pre-deposit - Manufacture - Mixing of food flavors does not amount to manufacture - Sections 2(f) and 35F of Central Excise Act, 1944. Stay/Dispensation of pre-deposit - Modification of - Interim order directing pre-deposit modified by allowing additional legal grounds - Impugned process prima facie held not to amount to manufacture and full waiver of pre-deposit granted - Rule 10 of CESTAT (Procedure) Rules, 1982 - Sections 2(f), 35B and 35F of Central Excise Act, 1944.
2	primier instruments.	2005 (183) ELT 65 - Tri-Chen (2nd May 05)		2005 (69) RLT 461 - Tri-Chen (1st Aug 05)	2005 - TIOL - 61	Demand - Clandestine removal - Evidence - Print outs of personal computer of company’s officer - Such print outs not fulfilled the statutory conditions laid down under Section 36B(2) of Central Excise Act, 1944 - Demand not sustainable - Section 11A ibid read with Rule 9(2) of erstwhile Central Excise Rules, 1944.Demand - Returned goods repaired and replaced - Commissioner’s findings that 90% of Original equipment clearances replaced, not supported by anything contained in the registers maintained in service station - Impugned order not sustainable - Section 11A of Central Excise Act, 1944 read with Rule 9(2) of erstwhile Central Excise Rules, 1944.
3	G A Jolli	2005 (184) ELT 111 - Tri-Chen (6th June 05)				Stay/Dispensation of pre-deposit - Drawback - Apportionment of raw materials - Drawback claimed in respect of that part of export which related to finished goods manufactured out of indigenously procured raw materials - For rest of export, drawback not claimed and denial of benefit of Notification No. 32/97-Cus. as regards exported goods manufactured out of imported input, not proper - Prima facie strong case in favour of appellant and no need to make any pre-deposit - Matter remanded to Commissioner (Appeals) to deal on its merits without insisting on pre-deposit - Section 129E of Customs Act, 1962.
4	Farwood Industries Limited	2005 (185) ELT 401 Tri - Chennai 25th July 2005				Furniture or handicrafts - Items not having visual appeal in the nature of ornamentation of a substantial nature - Such ornamentation must be of a substantial nature and not a mere pretence - Benefit of Notification No. 76/86-C.E. denied.Furniture - Dutiability - Movability - Items upon completion of manufacture, fixed to wall - Items capable of being marketed - Fact that they were manufactured as per specification of customers did not render the goods unmarketable - Duty correctly levied - Sections 2(d) and 3 of Central Excise Act, 1944.
5	Lakshmi Machine Works Limited	2005 (184) 61 Tri Chennai				Cenvat/Modvat - Inputs - Removal as such - Duty paid inputs purchased from market, credit availed and then removed to 100% EOU without payment of duty against CT-3 certificate issued by them - 100% EOU having not purchased the inputs directly from the factory of manufacture - Benefit of Notification No. 1/95-C.E. not available to the assessee.
6	Lakshmi Machine Works Limited	2005 (185) ELT 417 Tri - Chennai 25th July 2005				Refund - Cenvat/Modvat - Rewarehousing of goods - Appellants, in cases where rewarehousing certificates were not received back within prescribed period, paid duty by debiting their Cenvat Account - Department having accepted such duty payments through debits in Cenvat Account, and later on having acquiesced in appellants’ action of taking re-credit of such amounts, cannot turnaround and say that proper course of action was to file refund claim - Direction to reverse credit not sustainable - Rule 156B of erstwhile Central Excise Rules, 19
7	Premier Instruments & Controls Ltd.,	2005 (187) ELT 367 -Tri-Chen				Demand - Limitation - Suppression - Clearance to job worker - Neither any procedure followed nor department intimated about it initially - HELD : There was suppression and extended period invocable for initial period but not for period after relevant facts were disclosed to department - Section 11A of Central Excise Act, 1944.Demand - Limitation - Date of payment of duty is not relevant for determining limitation - Section 11A of Central Excise Act, 1944.
8	Senthil Kumar Spinners	2005 (188) ELT 521 - Tri-Chen- (31st Oct 05)				Clandestine removal - Proof - Private record - Recovery evidenced neither in mahazar nor statement of its author or person from whom recovery made recorded - Department alleging that removal was done through a middleman, but he was neither traced nor his statement recorded - In its absence, statement of person who allegedly bought the impugned goods found insufficient - Charge set aside - Rules 9 and 173Q of erstwhile Central Excise Rules, 1944 - Rules 4 and 25 of Central Excise Rules, 2002.
9	Rubfila	2005 (190) ELT 253 - Tri-Blr (12th Dec 05)				Rectification of mistake - Subsequent circular issued by Board whether can be ground for ROM - Circular not placed before Bench as it was not in existence - All arguments advanced in matter were considered and a speaking final order was passed - No mistake apparent in final order - ROM application rejected - Section 129B of Customs Act, 1962.
10	Rubfila	2005 (190) ELT 485 - Tri-Blr (26th Dec 05)		2005 (70) RLT 149 - Tri-Blr (12th Sept 05)		Drawback - Misdeclaration as 97% of inputs (natural rubber) of export product (Heat Resistant Latex Rubber Thread) not suffered any duty at all - Impugned products contain 97% by weight of rubber procured indigenously which is not excisable - Even though All Industry Rate fixed for a particular export product, applicable to all exporters who export the products, when there is evidence that inputs had not suffered any duty, mischief of Rule 3(1)(ii) of Customs and Central Excise Duties Drawback Rules, 1995 attracted and no drawback can be claimed.
11	Premier Instruments & Controls Ltd.,			2005 (67) RLT 213-Tri-Chenn (21st Mar 05)	2004 - TIOL - 838	Classification – Central Excise – cluster of instruments – consisting of pressure gauge, fuel gauge,ammeter and speedometer suitable for use in the motor vehicles- classification under Heading 8708 of CETA, 1985 and not under Heading 9031 ibid – appeals allowed.
12	MAK Controls			2005 (68) RLT 655- Tri-Chenn (13th June 05)		Demand – section 11A of CEA,11944- differential duty demanded on account of goods received back before adjudication – goods being available in factory of assessee question of demand and penalty does not arise – case remanded for verification of return of goods.
13	Sri Lakshmi Steel Re-rolling Mills			2005 (69) RLT 639 - Tri-Chenn (15th Aug 05)		CESTAT’s order – section 35CEA, 1944- Doctrine of merger- Tribunal order commissioner (Appeal) already merged with Tribunal order – Revenue’s appeal against same order not maintain- appeal dismissed.
14	Sivamani			2005 (71) RT 184-Tri-Chen (14th Nov 05)	2005 - TIOL - 942	Cenvat credit- Demand – Rule 57 AH of C.Ex. Rules, 1944- First stage dealer – appealent purchased HR coil sheets, plates etc. and supplied cuttings to manufacturers describing in same way in invoices – thickness and area are relevant for classification of goods under chapter 72 of CETA, 1985- cuttings cannot be treated differently from sheets, plates- credit correctly taken and passed on- appeals allowed.
15	Sri Rama Machinery			2005 (71) RLT 363-Tri-Chen (28th Nov 05)		Appeal- condonation of delay – section 35CEA,1944- company lying closed and assests were in possession of bank – copy of order received from range office and appeal filed within three months thereof- demand based on determination of annual capacity production which has set aside by Tribunal in earlier order- delay of 278 days condoned – case remanded.
16	Chokkiyan Karthikeyyan & Co	2005 (192) ELT 243-Tri-Chen				Stay/Dispensation of pre-deposit - Contract awarded to appellant to manufacture PSC Poles for TNEB - Relationship between TNEB and appellant on principal to principal basis as per contract - Prima facie, appellant is actual manufacturer and liable to discharge duty - Prima facie merits of case not in favour of appellant - Partial stay granted - Section 35F of Central Excise Act, 1944.

Reported Cases 2004

S.No	Name of the party	ELT	STR	RLT	TIOL	Issue in brief
1	Mira Textiles	2004 (165) ELT 240 -Tri-Chen			2003 - TIOL - 208	Value of clearances - Computation of - Value of clearances of intermediate goods namely kraft paper captively consumed while manufacturing final products, namely, carton boxes, not includible while computing total clearances in terms of Notification No. 6/2000-C.E., dated 19-10-2000 as amended - Explanation to notification being clarificatory, retrospective in effect.
2	Saralee	2004 (176) 688 Tri -Chennai			2004 - TIOL - 110	Demand - Cenvat/Modvat - Inputs - Line rejections - Removal under debit notes to input supplier without payment of duty - Revenue having accepted that such removal was line rejection, duty not demandable under Rule 57F(3) of erstwhile Central Excise Rules, 1944 - Commissioner (Appeals) finding that Rule 57D ibid applicable upheld - Rules 4 and 6 of Cenvat Credit Rules, 2004.
3	SMM Steel Rerolling Mills	2004 (171) E.L.T. 418 (Tri. - Bang.)				Stay/Dispensation of pre-deposit - Duty liability not to be discharged by applicant from lapsed Modvat credit - Duty collected by applicant from customers far in excess of that remitted to Department - Prima facie, demand against appellant under Section 11D of Central Excise Act, 1944 sustainable - Stay not granted - Section 35F ibid.
4	LMW	2004 (170) ELT 196 - Trib Chennai				Refund - Limitation - Duty paid as proof of export not furnished by assessee - Assessee claimed proof of export from Maritime Collector despatched vide their letter dated 11-7-1995 and received by assessee in Oct., 1995, not acceptable - Refund claim filed on 7-3-1996 barred by time - Section 11B of Central Excise Act, 1944.
5	Rane TRW Steering				2004 - TIOL - 13	Modvat credit is to be allowed on final products received in the factory for repair and if subsequently cleared on payment of duty
6	Pricol				2004 - TIOL 767	Inputs lost in fire accident at job worker's place : Credit used not to be reversed
7	LMW				2004 - TIOL - 847	Upon rejection of inputs, reversal of credit is sufficient

Reported Cases 2002

S.No	Name of the party	ELT	STR	RLT	TIOL	Issue in brief
1	Nutrend Business Machines	2002 (141) 119				Demand - Clandestine removal - Statements - Cross-examination - Demand based on statements of persons who do not turn up for cross-examination not sustainable - Section 11A of Central Excise Act, 1944.Evidence - Statements - Clandestine removal - Corroboration - Statements lose their evidentiary value when these are not corroborated by Revenue or a different explanation or version given - Section 11A of Central Excise Act, 1944.

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