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Central Excise - Case Laws
Showing 81 to 100 of 225 Records
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2013 (8) TMI 577 - GUJARAT HIGH COURT
Refund Claim of Duty - Unjust enrichment - finalization of provisional assessment - Duty paid under Protest - refund claim was rejected by the original authority on the ground that the petitioner-company had passed on an excess amount being claimed as refund to the customers and the refund claim was hit by doctrine of unjust enrichment. - Held that:- The duty on differential assessable value on account of Modvat Credit on input was denied on the ground of doctrine of unjust enrichment - Non receipt of goods had not been contended - when excess duty payment was to be refunded without considering the provision of Section 11B of the Central Excise Act as under the provisional assessment, duty payment was made under protest & hence the very base of decline would not survive.
The assessee had paid provisional duty which got reduced on finalizing assessment, entitling the petitioner to get the refund which is payable in terms of Rule 9B of Excise Rules, 1944. It is not disputed by either side that the assessee is entitled to refund on account of appellate order passed by Tribunal under sub-Rule (5) of Rule 9B of Excise Rules.
Thus, any recovery or refund consequent upon adjustment under Sub-rule (5) of Rule 9B is not to be governed by Section 11A & 11B of the Central Excise Act. Neither the final decision under Rule 9B(5) was appealed against nor the issue was re-agitated once again after such claim was finalized. Therefore, the issue of unjust enrichment was not required to be considered.
Once the Revenue does not dispute the receipt of paperboards used as input material under the cover of invoices for preparing shells by the assesse which contained duty paying particulars, the Modvat Credit cannot be denied to the assesse - Even if the assesse had agreed later on that M/s. ITC Ltd was the real manufacturer, that ipso facto would not take away its right to avail refund claim when duties were recovered from the assessee, treating it as the manufacturer at the time of recovery - the assesse had established due payment of such duties - Non-maintenance of procedure was since not the ground contested, further dwelling on that subject was unnecessary - Department was directed to refund the entire amount with interest - Decided in favor of assesse.
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2013 (8) TMI 576 - MADRAS HIGH COURT
Modvat / Cenvat Credit - Classification of Goods - Whether the assesse would be entitled to credit in respect of goods falling under Heading 8474.90 on capital goods - Held that:- Items used in the fabrication of chimney would fall within the ambit of "capital goods" and that the assesse was entitled to avail modvat credit in respect of the disputed items under Rule 57Q - the goods were capital goods entitled to credit under Rule 57Q of Central Excise Rules - Capital goods itself were eligible for modvat credit under Rule 57Q - the amendment under Notification No.25/96 had to be read only as clarificatory and retrospective effect had to be given for availing modvat credit.
The item in question were classifiable under Chapter Heading 84.31 and they were parts of materials conveying equipments falling under Chapter Heading 84.28 - Commissioner Of Central Excise, Jaipur Versus M/S Rajasthan Spinning & Weaving Mills Ltd. [2010 (7) TMI 12 - SUPREME COURT OF INDIA] - in the light of the decision of following the Apex court decision and in the background of the circular issued by the Government of India that the benefit of modvat credit under Rule 57Q would be applicable to all components, spares and accessories of the specified goods, irrespective of their classification under any chapter heading – the assesse would also be eligible for relief – order of the CESTAT set aside – Decided in favor of assesse.
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2013 (8) TMI 575 - GOVERNMENT OF INDIA
Conditions of Notification No. 40/2001 and Notification No. 21/2004 – Classification of Goods under proper Heading - Rebate Claims - Assesse had filed applications for rebate claims of duty paid on said goods exported under Rule 18 of the Central Excise Rules, 2002 - Revenue was of the view that the assesse had not followed the conditions and the procedure as specified in the Notification No. 40/2001-C.E. (N.T.) & Notification No. 21/2004-C.E. (N.T.) - They had declared and exported the goods in the relevant Shipping Bills under Chapter Heading Nos. 2008 99 10 (RITC Code) whereas the chapter heading No. 2108.99 of Central Excise Tariff has been indicated in Central Excise Invoice issued by the manufacturer - Held that:- Rebate claim was rightly disallowed by lower authorities - Goods were being exempted no duty was required to be paid - the amount paid by assesse can be treated as payment of duty - Assesse deliberately choose not to export goods under bond - the rebate of duty under the provision of Rule 18 was eligible only if the duty of excise paid on excisable goods exported or the duty paid on the material used in manufacturing/processing of such goods - the amount paid by assesses was a voluntary deposit made by them on their own volition with the department and same was to be returned in the way it was initially paid - the amount paid by the assesses may be allowed to be re-credited in their Cenvat credit account.
M/s. Nahar Industrial Enterprises Ltd. v. UOI [2008 (9) TMI 176 - PUNJAB AND HARYANA HIGH COURT] - Rebate/Refund - Mode of Payment - Petitioner paid lesser duty on domestic product and higher duty on export product which was not payable - Assessee not entitled for refund thereof in cash regardless of mode of payment of said higher excise duty - Petitioner was entitled to cash refund only of the portion deposited by it by actual credit and for remaining portion refund by way of credit is appropriate – Order modified
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2013 (8) TMI 574 - CESTAT NEW DELHI
Application of Rule 6(3) of the Cenvat Credit Rules, 2004 - Chips/modules are common inputs for both dutiable and exempted finished goods but the other major input that is plastic card are exclusively user based inputs and they cannot be used interchangeable for exempted as well as dutiable final products - Plastic card on which name, design, logo of the customers are printed - those plastic cards cannot be treated as a common input for both dutiable as well as exempted goods, But in respect of other plastic cards on which no such personal information i.e. name, design and logo and customer recorded - To be treated as common inputs for the purpose of manufacture of both dutiable as well as exempted goods.
There is no percentage fixed in the Cenvat Credit Rules to decide that if dutiable goods are much below that percentage, the manufacturer will be treated as exclusive manufacturer of exempted goods. In absence of any such limit mentioned in the rule Commissioner cannot deny the benefit of Rule 6(3)(1)/ Rule 6[3][b] to the appellants.
Limitation - Extended period – Held that:- Module as well as plastic card in majority of the cases the plastic card are inputs for the manufacture of recorded as well as unrecorded smart cards. Therefore allegation of suppression or mis-declaration of inputs is not sustainable in respect of modules and majority of the plastic cards against the appellant - Also not be liable to any penalty under Section 11AC of the Central Excise Act.
Plastic cards which are exclusively going to be used in the manufacture of recorded smart cards, on such quantity of the plastic cards no Cenvat credit is admissible to the appellants as these were not the common inputs for dutiable as well as exempted goods and on such inputs demand is required to be confirmed against the appellants along with interest and equal amount of penalty imposable under Section 11AC of the Act.
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2013 (8) TMI 573 - CESTAT AHMEDABAD
Packing material used outside factory i.e. Depot - packing material (extra carton etc.) not used in the factory of production - Cenvat Credit on extra (master or single) cartons would not be allowed as the same was not used in the factory of production, but are used in the depot of the appellant for packing of the cookers – Held that:- Apex Court has in the case of Vikram Cement [2006 (1) TMI 130 - SUPREME COURT OF INDIA] very clearly held that the credit cannot be denied merely on the ground that the inputs are not used within the factory of the production and clearly stated that the definition under Rule 57AA and other rule nowhere places any such restrictions.
Depot has been defined as place of removal only with effect from 13.5.2003 and prior to that the place of removal was factory only. Since prior to 13.5.2003 the goods were packed in primary cartons and transported in that condition only, the master cartons cannot said to be used in or in relation to manufacture of the final product - Credit in respect of these cartons will not be available prior to 13.5.2003.
Period of limitation – Held that:- Extended period of limitation is not invocable – As there is no case of any mischief, fraud or contumacious conduct made out on part of the appellant - and reliance was placed on the ruling of the Apex court in the case of Raj Bahadur Naryan Singh Sugar Mills Ltd. Vs. UOI –[1996 (7) TMI 146 - SUPREME COURT OF INDIA] and also on the ruling in the case of Centre of Development for Advanced Computing Vs. CCE, Pune -III – [2002 (2) TMI 105 - SUPREME COURT OF INDIA ] - Demand notice was issued only on 8.2.2005 relating to the period April, 2001 to 12.5.2003 and the same is barred by limitation in view of the fact that Return for May, 2003 submitted on 10.6.2003 - Limitation expired on 9.6.2204 much before the date of issue of show-cause notice. Decided in favor of Assessee.
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2013 (8) TMI 572 - CESTAT BANGALORE
Penalty u/s 11AC - Commissioner set aside penalty imposed by Department and imposed penalty under Rule 15(4) - Held that:- For imposing a penalty on any person under the above provision, the Department should clearly allege in the relevant show-cause notice that such person has wrongly taken or utilized CENVAT credit on input services by reason of fraud, collusion, wilful mis-statement, suppression of facts or contravention of any of the provisions of the Finance Act, 1994 or of the rules made thereunder with intention to evade payment of service tax. None of these ingredients was alleged in the subject show-cause notice for imposing penalty on the appellant under Rules 15(4) - Following decision of CCE, Pune-I vs. Thermax Ltd. [2010 (1) TMI 460 - CESTAT MUMBAI] - Decided against assessee.
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2013 (8) TMI 571 - CESTAT MUMBAI
Benefit of exemption under Notification 14/2002 - unprocessed cotton knitted fabrics - , the exemption under Notification 14/2002 at Sr.no.12 was denied to the appellant on the premise that the input (unprocessed knitted fabric) cleared from the Mahape unit have been received by Pawane unit without payment of duty as the appellant has availed exemption under Notification 14/2002 - Held that:- The Commissioner had misdirected to apply the higher rate of duty in the case of the assesses whereas the concessional rate under Notification No. 14/2002-C.E. had been allowed in respect of other units similarly situated - SIMPLEX MILLS CO. LTD. Versus COMMISSIONER OF CENTRAL EXCISE, MUMBAI [2005 (4) TMI 406 - CESTAT, MUMBAI].
Contention of the revenue that Notification 14/2002 the Mahape unit of the assesse had cleared the goods after satisfying the condition no. 1 i.e. in availing CENVAT credit on inputs/capital goods could not be accepted.
As per Notification 14/2002 the Mahape unit of the appellant has cleared the goods after satisfying the condition no. 1 i.e. in availing CENVAT credit on inputs/capital goods. Therefore, goods were cleared without payment of duty at Sr.no.10 of Notification 14/2002. These goods were received by their Pawane unit and the same were deemed to be duty paid as no credit on inputs/capital goods have been availed by their Mahape unit. - order set aside. - Decided in favor of assessee.
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2013 (8) TMI 540 - SUPREME COURT
Recovery of demand from successor of Unit - Priority of dues - Liability under the provisions of Excise Act and State Financial Corporation Act - Whether liability arises in law (de-hors the stipulation in Sale Deed /Agreement of Sale) having regard to the legal provisions contained in the Excise Act and State Financial Corporation Act - Held that:- UPFC being a secured creditor had priority over the excise dues - the appellant had not purchased the entire unit as a business, as per the statutory framework he was not liable for discharging the dues of the Excise Department - the subsequent purchaser cannot be fastened with the liability relating to the dues of the Government unless there was a specific provision in the Statute, claiming “first charge for the purchaser - As far as Central Excise Act was concerned, there was no such specific provision as noticed in SICOM as well - Proviso to Section 11 was now added by way of amendment in the Act only w.e.f. 10.9.2004.
Dues payable – Interpretation of Stipulation - Whether the appellant had agreed to discharge the dues payable to the excise department by the borrower on the interpretation of stipulation contained in the Sale Deed of the land and building and Agreement of Sale of plant and machinery - Held that:- Statutory liability arising out of the plant and machinery could be the sales tax etc. payable on the said machinery - dues of the Central Excise were not related to the plant and machinery or the land and building and thus did not arise out of those properties - Dues of the Excise Department became payable on the manufacturing of excisable items by the erstwhile owner.
The statutory dues were in respect of those items produced and not the plant and machinery which was used for the purposes of manufacture - The expressions in the Sale Deed as well as in the Agreement for purchase of plant and machinery talks of statutory liabilities “arising out of the land” or statutory liabilities “arising out of the said properties” (i.e. the machinery) - it was only that statutory liability which arises out of the land and building or out of plant and machinery which is to be discharged by the purchaser - Excise dues were not the statutory liabilities which arised out of the land and building or the plant and machinery - Statutory liabilities arising out of the land and building could be in the form of the property tax or other types of cess relating to property - The appeal was allowed and the judgment of the High Court was set aside - the notice of the Excise Department calling upon the appellant to pay the dues of the erstwhile owner of the unit was also stands quashed.
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2013 (8) TMI 539 - GUJARAT HIGH COURT
Un-accounted Fabrics - Confiscation of Goods - Interest and Penalty u/s 11AC r.w. Rule 173 of the Central Excise Rules 1944 - Revenue found un-accounted fabrics and incriminating documents during the visit and of the view that clearance of goods without due payment of duty under the law – Held that:- The matter was remanded to the adjudicating authority with a direction to frame an order denovo after giving the assessee an option to pay duty amount within 30 days by making it explicitly clear in the order itself that if the assessee wanted to avail such option, he was permitted to do so - Commissioner of C. Ex & Cus. Surat-I vs. Harish Silk Mills [2010 (2) TMI 494 - GUJARAT HIGH COURT] - the appeal filed by the assessee was allowed for statistical purpose and remand the matter to the Additional Commissioner to pass a fresh order in light of the observations made.
It was also directed to consider the provision of section 11AC and the Tribunal had had specifically noted that none of the two authorities below had availed any option to the assessee to pay duty demand with interest and penalty of 25% of the duty within 30 days from the date of adjudication, and therefore, the Tribunal in its order impugned maintained that the case of the assessee is squarely covered by the explanation to Section 11AC - The Tribunal also noted that the duty determined u/s 11AC(2) was subsequent to the year 2000 and, therefore, the case would be covered by the explanation to Section 11AC of the Central Excise Act.
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2013 (8) TMI 538 - GOVERNMENT OF INDIA
Rebate claim - Revenue was of the view that the exported goods were fully exempted from duty, the assesse can neither pay any duty on the same nor avail Cenvat credit on inputs used in the manufacture of exempted products - Held that:- Assesse was not eligible for grant of input rebate claim - Assesse had not followed the prescribed procedure at all and also availed the Cenvat credit on inputs - The original adjudicating authority had rejected the claim of the assesse on the ground that the goods were fully exempted from duty vide Notification No. 4/2006- C.E. (N.T.) and therefore by virtue of sub-rule (1) of Rule 6 of Cenvat Credit Rules, 2004 the assesses were not entitled for Cenvat credit on inputs used in manufacture of exempted goods - for availing rebate of duty paid on material used in exported goods, assesse had follow the procedure laid down in the Notification No. 21/2004-C.E. - the input rebate was admissible if the Cenvat credit was not availed on the inputs – revision application Rejected. - Decided against the assessee.
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2013 (8) TMI 537 - AUTHORITY FOR ADVANCE RULINGS
Manufacture u/s 2(f) - manufacturing of stainless steel from metal scrap - Processing of raw material into 'blended metal scrap' - Sorting grade wise - Cutting/Shredding/Crushing and sizing of oversize material - Bundling and briquetting - Blending - Whether the activity proposed to be carried out by the assesse can qualify as/can be treated to be 'manufacture' under the act - Held that:- It can be termed as 'manufacture' - any material difference was found in the relevant facts when the actual determination was made it will be open to the concerned authority to act in accordance with law as delineated above - In the aforesaid legal and factual background, it was ruled that the proposed activity would amount to manufacture.
Opinion of Director, National Institute of Secondary Steel Technology - Held that:- The opinion was inconclusive and itself admitted that there was no existing production unit using the proposed methodology and therefore conclusions given are on the basis of documents only - It also goes on to add that in the absence of such process being applied in India it was very difficult to establish commercial viability of the process - the opinion seems to centre around techno-commercial viability and does not give any conclusive findings on the question of manufacture - it cannot be taken as an authority for the proposition that the said process cannot amount to manufacture.
It has not been denied that scrap of specific grades alone can be used in the manufacture of stainless steel and that the processes to be adopted by the applicant would result in the transformation of their raw materials, namely, metal scrap of assorted sizes, grades, composition etc. into metal scrap of specific grades which is directly usable for manufacture of stainless steel. Therefore what emerges from the processes would be a product having distinct identity and use, different from the raw material from which it is made. - proposed activity would amount to manufacture.
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2013 (8) TMI 536 - CESTAT AHMEDABAD
Stay Application – Waiver of Pre-deposit – Appellant is purchaser in auction of items wherein winding up of a company is ordered by the Hon'ble High Court of Gujarat - Cenvat credit of the excise duty paid on capital goods was allowed to an assessee from the year 1994 and hence there is an element of doubt as to whether they were eligible for cenvat credit of the capital goods purchased by them – Held that:- This issue needs to be gone into detail as Department is unable to produce any documents in support of his claim that these were no duty paid inputs lying in factory - Issue needs deeper consideration - Appellant's bank guarantee of Rs.5 lakhs were encashed in some other proceedings by the Revenue Authorities - Revenue Authorities encashed the bank gaurantee amount of Rs.5 lakhs, then the said amount if not returned to the appellant; keeping the same in mind, Appellant directed to deposit further an amount of Rs.5 lakhs - Subject to such compliance being reported to the Deputy Registrar, applications for the waiver of pre-deposit of the balance amounts involved are allowed and recovery thereof stayed till the disposal of appeals.
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2013 (8) TMI 535 - CESTAT NEW DELHI
Shortage in Stock on inquiry – Failure to explain the shortages – Held that:- Shortage of 32.174 M.T. of final product – Party’s repeated failure to explain the reasons for the said shortage which is substantial in nature - It is clear that the party has surreptitiously cleared the said final products without payment of appropriate duty and without observing the mandatory formalities - Supressed the facts of such removal, with intention to evade the payment of duty - Thereby attracting the proviso to Section 11 A (1) of the Central Excise Act, 1944 – Also, in the case of Nabha Steels Limited versus Commissioner Central Excise, Chandigarh [ 2004 (169) E.L.T. 345 (Tri.-Del.) shortage of Ingots was found on physical verification and admitted by the Director and the duty involved was debited. Penalty was imposed - Facts are almost similar in this case. Decided in favor of Revenue.
25% of Penalty paid – Held that:- Correct as per legal provisions and Board’s circular No.831/08/2006 Dt. 26.07.2006 - 100% penalty should be levied - Once respondent have exercised the option to pay 25% penalty within specified time it is correct in view of facts and legal provisions. Decided against the Revenue.
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2013 (8) TMI 534 - CESTAT NEW DELHI
Classification of goods - disposable aluminum foil casserole tray dish – Applicability of decision of South Africa Supreme Court - Whether the disposable aluminum foil casserole falls under heading 76.15 or under heading 76.12 of the Central Excise tariff – Relying upon the decision in the case of Hindalco Industries Ltd. vs. CCE, Vapi [2008 (10) TMI 179 - CESTAT, AHMEDABAD], it was held that goods in question are properly classifiable under heading 76.15.
The contention of the learned Jt.CDR that decision of foreign countries are not their own law and cannot be made applicable to Indian context, is not being acceptable by us inasmuch as the decision of Hon'ble South Africa Supreme Court was based upon the opinion of the Committee on Harmonised System which is also the basis of Indian Central Excise Tariff. For the same reasons, we find no merits in the contention of the learned Jt. CDR that the classification opinion given by Harmonized System Committee is not binding unless the same is made applicable by the Board's order /circular / notification or clarification.
Goods in question are properly classifiable under heading 76.15 by following the earlier decision of the Tribunal in the case of Hindalco Industries [2008 (10) TMI 179 - CESTAT, AHMEDABAD]. - Decided in favor of assessee.
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2013 (8) TMI 504 - MADHYA PRADESH HIGH COURT
Entertainability of the petition – Interlocutory order - Waiver of pre- deposit - Whether the Petition could be entertained under Article 227 of the Constitution of India as the same had been filed against the interlocutory order - The petitioner had filed this writ petition under Article 226/227 of the Constitution of India being aggrieved by the impugned interlocutory order for not allowing dispensing with the requirement of depositing the entire sum made under the proviso of the Central Excise Act – Held that:-The petition being filed against the interlocutory order passed by the appellate authority under its vested discretionary jurisdiction, could not be interfered under the superintending or revisional jurisdiction of this Court and deserves to be dismissed.
Discretionary Jurisdiction u/s 35(F) - It was undisputed fact on record that the order had been passed by the appellate authority by virtue of the proviso of Section 35 (F) of the Act under its vested discretionary jurisdiction. Before proceeding to consider the merits of the matter - the interlocutory order had not been found to be improper or contrary to the proviso of Section 35 (F) of the Act and in such premises - there was no perversity, illegality, arbitrariness or anything against the propriety of law in the interlocutory order - the petition was devoid of any merits was dismissed at the stage of motion hearing – Decided against assesse.
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2013 (8) TMI 503 - MADHYA PRADESH HIGH COURT
Explosives as Inputs – Eligibility for MODVAT - Whether the Explosives used in mines for blasting lime stone can be considered as inputs eligible for MODVAT in terms of Rule 57A of Central Excise Rules, 1944 -Held that:- The explosives used in mining by blasting limestone can be considered as input eligible for MODVAT credit in terms of Rule 57-A of the Rules – following Jaypee Rewa Cement Vs. Commissioner of Central Excise, M.P. [2001 (8) TMI 1332 - SUPREME COURT OF INDIA ] and Vikram Cement Vs. Commissioner of Central Excise, Indore [2006 (1) TMI 130 - SUPREME COURT OF INDIA].
If the manufacturer of cement was using duty paid explosives for mining limestone and using such limestone to manufacture cement, though the explosives were not brought within the factory, the manufacturer by virtue of rule 57-A read with Rule 57-J was entitled to MODVAT credit in respect of duty paid on the input - the explosives for blasting mines to produce limestone for use in manufacture of cement/clinkers in factory situated at some distance away from mines, MODVAT cannot be denied on the ground that they were not used as inputs within factory – Decided in favor of assesse.
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2013 (8) TMI 502 - GUJARAT HIGH COURT
Principles of Natural Justice - Opportunity to Cross- Examine - Application for Supplying Additional Documents - Confirmed Duty Demand along with Penalty and Interest - Held that:- The order was set aside and request was made to the adjudicating authority to pass a separate order on the assesses’ application/request letter for granting cross examination of the witnesses - it was incumbent upon the Commissioner to decide the request of cross examination of the assesses before finally adjudicating the show cause notice and culminating the proceedings into an order in original – Assesses personally filed an affidavit and it was clearly made out from the contents of such affidavit that the they were awaiting communication from the Commissioner in respect of the request of cross examination made reiteratively - on account of pendency of such a request, the assesses had also not concluded hearing on the merits - Petition was allowed – Decided in favor of assesse.
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2013 (8) TMI 501 - ALLAHABAD HIGH COURT
Disallowance of Modvat-credit - t part and accessories of the capital goods - HR/MS/GC sheers plates/angles/channels/supporting structure etc. - Held that:- The Adjudicatory Authority had correctly denied the Modvat-credit - The goods in question were neither used for producing nor for processing of any goods or bringing about any change in any substances for the manufacture of final products.
Nature of Goods - Whether the Tribunal was justified in holding that HR/MS/GC sheets plates/angles/channel/supporting structure etc. were not part and accessories of the capital goods installed in the factory - When even the Asstt. Commissioner of Central Excise admitted that these goods were used in the machine - Held that:- The items in the present case were not falling within the meaning of capital goods as defined in explanation to Rule 57Q of the Central Excise Rules, 1944.
COMMISSIONER OF C. EX., COIMBATORE Versus JAWAHAR MILLS LTD. [2001 (7) TMI 118 - SUPREME COURT OF INDIA] and COMMISSIONER OF C. EX., COIMBATORE Versus JAWAHAR MILLS LTD [2001 (7) TMI 118 - SUPREME COURT OF INDIA] was on the user test, which was in respect of goods in fabrication of chimney was an integral part of the diesel generating plant.
The goods in the present case do not fall within the meaning of Explanation 1(a) of Rule 58Q. We also find that Explanation 1(b) of Rule 58Q is not attracted to the goods in the present case inasmuch as ‘capital goods’ in Explanation 1(b) includes components, spare parts and accessories of the aforesaid machines, machinery, plant, equipment, apparatus, tools or applicants used for aforesaid purpose. – Decided against assessee.
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2013 (8) TMI 500 - ALLAHABAD HIGH COURT
Classification of Goods - Re-testing of Goods - Revenue was of the view that the rubber sheets manufactured by the assesse were classifiable under tariff entry 40082910 - Assesse made a request for re-testing the sample - Held that:- The reasons given for denial of retesting were not relevant -The right of retesting, for which samples were specifically drawn by the department - The instructions issued under the Central Excise Rules 2004 could not be denied to the assesse.
The application may not be rejected on the ground that the testing was done by Government recognized independent labs, and that the test reports are clear and complete - Directions were made that samples 'B' or 'C 'may be sent for retesting by the Central Excise Department and in case samples 'B' & 'C' were not available with the department for any reason, sample 'D', given to the manufacturer, may be sent for retesting -In case sample 'D' was not in a condition for testing for any reason, or was not available with the manufacturer, the department may draw fresh samples from the manufacturer in the manner, which was provided for sending it for retesting – Decided in favor of assesse.
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2013 (8) TMI 499 - CESTAT NEW DELHI
Confiscation under Rule 25(a) of the Central Excise Rules, 2002 - Polyfil quilts manufactured by the job workers M/s Sea Rose Exim (P) Ltd. and M/s Anmol Knitters (P) Ltd. – The said goods cleared to the appellant without payment of duty under Notification No. 30/2004 dated 09/4/04 which is available to the goods falling under Chapter 63 – Held that:- Goods, in question, had been cleared by M/s Sea Rose Exim (P) Ltd. and M/s Anmol Knitters (P) Ltd. without payment of appropriate duty, thus, the provisions of Central Excise Rules had been contravened in respect of the same - The goods would be liable for confiscation under Rule 25 (1) (a) of the Central Excise Rules, as for confiscation of the goods under Rule 25 (1) (a), the intention to evade the payment of duty is not required to be proved – Decided against the Assessee.
Penalty under Rule 26 of the Central Excise Rules,2002 – Held that:- For imposition of penalty under this rule, there must be evidence on record indicating that the appellant had received those goods knowing very well that the same are liable for confiscation or in other words, the appellant were aware that the goods were correctly classifiable under heading 94.04 and not eligible for exemption but still dealt with those non-duty paid goods – There is no evidence in this regard – Penalty under Rule 26 is not sustainable – Decided in favor of Assessee.
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