CX - Assessee has challenged the judgment and order of Tribunal where it is observed that the contention that seized goods from auto rickshaw had no marketability and as such no duty could be charged, cannot be accepted as it was never pleaded before the authorities below - Moreover, it is difficult to accept that the seized adopters and rims have no market value - No evidence has also been produced by assessee even to substantiate this plea - The ratio of the law laid down in Sonic Electrochem (P) Ltd. 2002-TIOL-212-SC-CX wherein the criteria for determination of marketability of the goods has been laid down by Apex Court is not attracted to the case in hand, rather it goes against assessee/respondents as it has been observed by Apex Court that essence of marketability is neither form nor in shape or condition of the article, but the commercial identity of article known to the market - Observations made by Tribunal is contrary to record and matter is remitted back to the Tribunal - It is made clear that the matter is remanded only on the ground that finding arrived at by the Tribunal is contrary to the record and judgment which is relied upon by assessee will be considered while deciding the matter afresh by Tribunal: HC - Matter remanded: RAJASTHAN HIGH COURT

CX - Department is in appeal against order of Tribunal in 2015-TIOL-3076-CESTAT-DEL - Assessee is manufacturer of confectionary on job work basis for M/s Parle Products Pvt. Ltd. - They had received capital goods from M/s Parle Products Pvt. Ltd. under a rent agreement - Department was of the view that since these capital goods have not been acquired by assessee from a financing company under a lease or hire purchase or loan agreement, they are not eligible for capital goods cenvat credit in terms of the provisions of Rule 4(3) of CCR, 2004 - Tribunal by following their precedent decision in assessee's own case and in case of Wimplast Limited 2014-TIOL-2010-CESTAT-AHM , held that assessee is entitled to take Cenvat credit on capital goods - The judgment which sought to be relied upon by the Tribunal was not challenged - In that view of the matter, the issue is required to be answered in favour of assessee - Liberty is granted to the department to revive the matter in case the view is taken contrary to tribunal decision: HC - Appeals dismissed: RAJASTHAN HIGH COURT

2018-TIOL-151-CESTAT-MAD

CX - Assessee engaged in manufacture of P or P medicines - During verification of records, it appeared that assessee had adopted cost construction method as per Rule 11 r/w Rule 8 of CEVR, 2000, for arriving at the value of goods cleared free as "Physician samples" and had accordingly discharged excise duty instead of correctly adopting the value as under Section 4 (1) (b) of CEA, 1944 r/w Rule 4 of Rules 2000 - Accordingly, proceedings were initiated proposing recovery of differential duty - On going through SCN, it emerges that while recovery of differential duty has been proposed to be demanded under proviso to Section 11A (1) read with Rule 4 and Rule 8 of Rules, 2002, however, there is no justification or reasoning given in SCN for invoking the extended period of limitation - The SCN thus concedes that ER-1 returns had been filed by assessee however, on the grounds that return has no indication of method of valuation followed for clearances of samples, there has been a conclusion that there was wilful misstatement of facts and contravention of the provisions of Rules, 2002 on the part of assessee with an intention to evade payment of duty - That by itself will not justify invocation of extended period - Assessee have claimed that a letter had been sent to jurisdictional Superintendent stating that they were adopting cost of production as per Rule 11 read with Rule 8 following the Board's circular - In any case, there definitely had been considerable confusion in method and manner of clearance of physician samples - Board's earlier circular dt. 01.01.2002 which advised adoption of residual Rule 11 along with spirit of Rule 8 of Valuation Rules was superseded by another circular dt. 25.04.2005 which advocated that in case of free samples, value had to be determined under Rule 4 of the Valuation Rules - Taking all these factors in mind, impugned demand is hit by limitation, same is legally unsustainable - This being so, impugned order is set aside in toto: CESTAT - Appeal allowed: CHENNAI CESTAT

2018-TIOL-150-CESTAT-DEL

CX - SCN issued to the appellant alleging that a total quantity of 1775.84 MT of ingots, for which invoices were issued to M/s.Bhushan Steel and M/s.JRM Steels, was received by the appellant and used to manufacture finished products which were cleared clandestinely - demand confirmed, equivalent amount of penalty imposed - appeal to CESTAT.

HELD: Search operations at the factory of the appellant did not result in recovery of any incriminatory documents - during investigation, the department has failed to gather any evidence specifically to establish receipt of the ingots at the factory of the appellant and manufacture of goods out of such ingots -no evidence of clearance of such clandestinely produced final products were unearthed -none of the buyers who might have purchased such goods were identified and questioned - inspite of the assurances given by Revenue before the High Court, the department has failed to give copies of the documents cited in the SCN - the demands raised on the basis of such relied upon documents not supplied to the appellant cannot be sustained - the allegation of clandestine clearance is a very serious charge -the department is required to support such a charge with tangible evidence-in the present case, the allegations of clandestine clearance has not been supported by any tangible evidence -without support of evidence, allegation remains only allegation and cannot be taken as established - impugned order set aside, appeals allowed : CESTAT [para 8, 9, 10, 12, 13] - Appeals allowed: DELHI CESTAT

2018-TIOL-149-CESTAT-DEL

CX - Appellant is engaged in the manufacture of pesticides (DDT) -on the date of manufacturing, the appellant paid the duty provisionally at the applicable rate – appellant wrote to the Ministry for the valuation of the goods – Ministry informed the valuation price for the difference only on 24.3.2014 – duty was paid as per the provisional assessment – however, the final assessment was passed on 21.9.2015 - department has demanded the interest.

HELD: In view of the ratio laid down by the Bombay High Court in the case of CEAT Ltd. - 2015-TIOL-397-HC-MUM-CX , and upheld by the Supreme Court, it is evident that it was not possible to read in the Central Excise Rules, 2002, the liability to pay interest for the period between provisional assessment and payment of differential duty till final assessment - since the payment was made voluntarily before the final assessment which did not result in any dues payable to the Government, so interest is not payable – no justification found in the impugned order, the same is set aside – appeal allowed : CESTAT [para 7, 8, 9] - Appeal allowed: DELHI CESTAT

2018-TIOL-148-CESTAT-BANG

CX - Assessee engaged in manufacture of digital panel meters and energy meters and are availing CENVAT Credit benefit under CCR, 2004 - A SCN was issued and after following the due process, the adjudicating authority allowed the input service credit on few services and denied on other services - On appeal, Commissioner (A) partly allowed the appeal and rejected the CENVAT credit on furniture and fixtures and climate charges, associate membership, building architect, erection and commissioning charges, installation charges, installation of floor tiles, printer/photocopier and on foreign transaction on the ground that those services do not fall in definition of input service - All these services on which CENVAT credit has been denied fall in definition of 'input service 'as per the explanation against each services - Further, Commissioner (A) has observed that assessee have not produced documentary evidence to substantiate their claim; whereas, assessee has stated that they had produced the documents but still the Commissioner (A) has not seen the documents though the assessee had attached the copies of challan, statement showing computation, sample bills along with the present appeal - In view of the fact that all the input services fall in the definition of 'input service 'as held by various decisions, appeal of assessee allowed and matter remanded to adjudicating authority for verification of documents wherever the documents have not been produced: CESTAT - Matter remanded: BANGALORE CESTAT