CX - The assessee company is engaged in manufacturing biochemic & homeopathic medicine - During the period of dispute, it claimed refund on grounds that their unit was a new one and had escaped notice of Notfn No 12/2012-CE which gives exemption to unbranded biochemic medications - Such refund was denied on grounds that the asssessee had been availing duty @ 2% on such medicaments after abatement under Notfn No 49/2008-CE-NT - The Department also sought to deny exemption on grounds that the assessee's products were sold under a brand name.

Held: The moot issue is whether the presence of a design on the bio-medicament along with a name amounts to a brand name & thus whether the assessee is entitled to absolute exemption under Notfn No 12/2012 - Considering the definition of 'brand name', the connection between the medicine & the manufacturer contemplated under the Explanation should be indicative that the manufacturer has a proprietary interest in the medicine - Presently, the assessee sells homeopathic medicines under a generic name but with the assessee's name on the label, indicating the assessee as the manufacturer - It is admitted fact the assessee manufactured the homeopathic medicinesd which are sold only under the generic names endorsed with the name of the company which helps the buyer establish connection between the medicine & its manufacturer - Hence the name of the assessee's name along with the design amounts to a brand name - Thus the assessee is not entitled to exemption under Notfn No 12/2012: CESTAT (Para 2,6-9)

- Appeal dismissed: DELHI CESTAT

CX - Assessee is engaged in manufacturer of MS Angles, MS Fiats, MS Sq. Bars and MS Channels - They were issued with SCN alleging that during search, officers recovered blank unnumbered invoice book signed by authorized signatory alongwith numbering machine and two private notebooks showing day wise details of production and clearance from room of Supervisor Shri Kuldeep Saini - Demand is based upon private note book and invoice books recovered from room of Shri Kuldeep Saini, the Supervisor of assessee Company - Further, the Proprietor of assessee Unit in his statement alleged to have accepted the clearances of goods mentioned in note book and four invoice copies - The register of weighbridge of M/s Bharath Dharam Kanta is allegedly containing details of goods which match with some of the consignments alleged to have been cleared by assessee and raw material received - There is no corroboration with goods having been received by any single person - Even not a single statement of transporter or driver of vehicle has been recorded to show that the goods allegedly were removed from assessee factory without payment of duty - No investigation has been undertaken from raw material supplier as whether any goods were received by assessee in clandestine manner - Though SCN has relied upon the statement of weighbridge owner to allege that the clandestinely cleared goods by assessee were weighed at the said weighbridge, however even the vehicle owner or drivers were not questioned whose vehicle numbers were mentioned in the weighbridge register - No evidence in the form of receipt of amount towards consideration of such alleged clandestine clearance has been brought on record - In view of lack of evidence, Commissioner has rightly dropped the proceedings with regard to the charge pertaining to clandestine removal - However, he has upheld the charge pertaining to certain other charges and has confirmed duty and penalties - The party's appeals have already come up before the Tribunal and the Tribunal has upheld that charge and the findings recorded by the Commissioner except for giving benefit of reduction in penalties - The order passed by the Commissioner was just and proper and it does not require any interference - Further the revenue has alleged that the looking to the power consumption it shows that assessee had manufactured and cleared the goods without payment of duty - Only on the basis of electricity consumption without showing commensurate quantity of raw material consumed, source of procurement of excess raw material, payment made to raw material supplier, excess labour involved, clearance of finished goods its transportation and receipt of consideration of finished goods, the demand cannot be made - Impugned order is unsustainable and same is set aside: CESTAT

- Appeal allowed: HYDERABAD CESTAT

CX -Respondent Assessee had availed CENVAT credit of service tax paid on various input services availed by their head office which is registered as ISD under rule 4A of the STRules, 1994 - Revenue entertained a view that since such services were availed at the head office and pertained to erection, installation and commissioning services, which were not having any connection with the manufacturing activities, credit is inadmissible - Commissioner dropped the demand of Rs.3,98,38,092/- raised for the period October 2007 to February 2010 and, therefore, Revenue is in appeal.

Held: Issue is no more res integra and stands settled by the Tribunal decision in ECOF Industries Pvt. Ltd. - 2009-TIOL-2109-CESTAT-BANG where it is held that the distribution of credit by ISD to a unit where the services were not availed cannot be questioned in terms of rule 7 of the CCR, 2004 as long as the credit does not exceed the amount of tax paid and should not be attributable to the services used in manufacture of exempted goods or providing exempted services -said decision stands upheld by the Karnataka High Court - 2011-TIOL-770-HC-KAR-ST - no justification arises for interference with the impugned order - Revenue appeal rejected: CESTAT [para 4, 5]

- Appeal rejected: MUMBAI CESTAT

CX - Alleging that DMT (Dimethyl Terephthalate) residue is a marketable commodity, SCNs were issued periodically demanding CE duty on the quantity of residue used in the boiler for generation of steam during the period March 2005 to June 2007 - demands confirmed and penalty imposed along with interest - appeal before CESTAT.

Held: Issue is whether residue which emerges is excisable and whether the appellants are entitled for the benefit of notification 217/86-CE, 67/95-CE as amended - in the appellant's own case, the Tribunal has held that the appellants are entitled for the benefit of the said exemption notifications - following the said precedent, impugned order is set aside and appeal is allowed: CESTAT [para 4, 5]

- Appeal allowed: MUMBAI CESTAT

CX - SCN was issued to assessee alleging clandestine clearance of cheese cotton yarn and also for clearance of said yarn in the guise of hank yarn thus evading payment of central excise duty - After due process of law, original authority confirmed the demand along with interest and also imposed equal penalty under section 11AC of the Act - The main documentary evidence is brokers commission file alleged to have been recovered from factory premises - According to department, said document contains the details of commission paid to main broker who was dealing with assessee namely N. Thirumoorthy - Shri N. Thirumoorthy has stated that he has not maintained any such broker file and that while his statement was recorded, he was not shown the broker commission file - Instead, he was shown two or three loose papers - He has also stated that his name was written in those loose sheets on the instruction of the officers - He has also stated that he has not received any commission shown in the said paper / loose sheets - Thus, said document cannot be relied and does not support the allegations raised in SCN - The other evidence relied by department are only statements of Elango and other traders like P. Selvaraj, Kumar - In cross-examination, most of them have denied the allegations - Merely based on the statement of Shri Visveswar, the demand has been confirmed - Many of the deponents were not produced for cross-examination, even though the assessee had requested for the same - The department did not produce also Shri Selvaraj, partner of M/s. Aruljothi Mills, Standard Texiltes, Shri Raviraj, partner of M/s. Ragurama Traders - Without producing these persons for cross-examination, the adjudicating authority has relied on the statements of these persons - The law is settled in this regard that as per section 9B of Central Excise Act, when the assessee has requested for examination / cross-examination, the same has to be considered and the statement without examination cannot be relied - The department has not been able to establish the clandestine clearance or clearance of cotton yarn in the guise of hank yarn - Therefore, demand cannot sustain and is set aside - It also has to be noted that after the visit of officers in 1998, SCN has been issued two years later i.e. 3.4.2000 and the adjudication has been completed after huge delay of six years on 23.1.2006 only: CESTAT

- Appeal allowed: CHENNAI CESTAT