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Showing 261 to 280 of 1580 Records
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2013 (10) TMI 1320 - CESTAT MUMBAI
Utilization of CENVAT Credit - Notification No. 13/2003-C.E. (N.T.), dated 1-3-2003 - Interest u/s 11AB - Held that:- Though as per the Explanation, it has been provided that additional duty of excise leviable under Section 3 of the ADE (GSI) Act, 1957 and paid on or after 1-4-2000, may be utilized towards payment of duty of excise leviable under the First Schedule or the Second Schedule to the Central Excise Tariff Act, 1985, as per Section 88 of the Finance Act, 2004, the date of effect of the amendment is from 1-3-2003 and the said Section clearly mentions that the explanation shall stand amended and shall be deemed to have been amended retrospectively in the manner as specified in the Second Schedule, on and from the corresponding date mentioned in column (3) of the Schedule. From this, it is evident that the amendment is effective from the date mentioned in the column (3) of the Second Schedule to the Finance Act, 2004 and the date mentioned is 1-3-2003. If that be so, the utilization of credit is permitted only w.e.f. 1-3-2003 and not prior to that date even though the credit might have accumulated on or after 1-4-2000. - Appellant would be liable to pay interest on the advance utilization of credit - Decided in favour of assessee.
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2013 (10) TMI 1319 - CESTAT AHMEDABAD
Benefit of Notification Nos. 29/2004 and 30/2004 - Denial of CENVAT Credit - Held that:- Entire show cause notice asking the appellant to reverse the Cenvat credit proportionate to the value of the goods cleared by claiming benefit under notification 29/2004 is misdirected, inasmuch as, it is on records that the appellant has availed the Cenvat credit of all the items of capital goods. It is also on record that appellant has taken credit of 50% of the Central Excise duty in the first year and balance 50% in the second year. We find that the Cenvat credit availed by the appellant on the said capital goods or the consumables which are used in the capital goods, are eligible. The entire case of the Revenue is totally on the wrong footings, inasmuch as the capital goods which were put to use by the appellant were for the manufacturing of the same product which are eligible for exemption as well as for discharge of duty liability under Notification No. 29/2004 and 30/2004. - Decided in favour of assessee.
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2013 (10) TMI 1318 - GUJARAT HIGH COURT
Exemption from additional duty of customs u/s 3(5) of the Customs Tariff Act, 1975 - unit situated at KASEZ - Revenue felt that the appellant had not followed the provisions of law correctly and was engaged in clearance of goods into DTA without carrying out any manufacturing activity as per Section 2(r) SEZ Act, 2005 and as such they were not entitled for the benefit of exemption of additional duty of customs - Bar of limitation - Whether the CESTAT has committed any error in rejecting the appeal of the Revenue on the ground that invocation of the extended period of limitation by the lower authorities was unjustifiable - Held that:- No flaw could be pointed out by the Revenue in the detailed reasonings given by the Tribunal, while dismissing the appeal of the Revenue, which has arisen from the order-in-original. As rightly pointed out by the Tribunal that the respondent had presented entire material before the concerned Customs authorities posted at KASEZ which also had sufficient opportunity to scrutinize the same and the benefit of Notification No. 45/2005-SEZ was also availed to the respondent. - Tribunal was justified in not once again deciding such issue as to whether the activities amount to manufacturing or not. - With regard to the dismissal on the ground of limitation, the Tribunal was justified in not allowing the extended period to the Revenue in absence of any intention on the part of the respondent to evade duty, particularly when there was neither any suppression nor any misdeclaration which would permit any extension of limitation beyond the period of six months. - Decided against Revenue.
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2013 (10) TMI 1317 - MADRAS HIGH COURT
Penalty u/s 11AC - violation under Section 6(3) of the Cenvat Credit Rules - Held that:- even though the assessee had raised an issue of bona fide belief, the Tribunal accepted the case of the assessee straight away holding that they had been submitting periodical returns and they were not told earlier to made their payment. Taking into account that the assessee had not disputed the duty and interest liability, the Tribunal simply cancelled the levy of penalty. Even though the Tribunal had not in principle adverted to the twin conditions laid down under Section 11AC, we do not think that we need to remand the matter once again for the simple reason that the show cause notice issued on 9-5-2006 makes no reference as to the satisfaction of the Adjudicating Authority as to the twin conditions being satisfied before imposing penalty under Section 11AC. Except for pointing out to the violation committed by the assessee resulting in the demand of duty and interest, as far as the levy of penalty is concerned, the show cause notice had called upon the assessee to reply as to why penalty could not be imposed under Section 11AC. Even though the first Appellate Authority stated that the Adjudicating Authority had found that the short levy had occurred on account of wilful suppression of material fact, we searched in vain of such an observation in the order of the Adjudicating Authority only to find that there is no discussion on this aspect. Thus, when facts are clear that there is no such allegation as to the wilfulness in the misstatement or suppression of facts with an intention to evade payment of duty, applying the decision of the Supreme Court [2009 (7) TMI 6 - SUPREME COURT], we had no hesitation in rejecting the Revenue’s case - Decided against Revenue.
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2013 (10) TMI 1316 - SC ORDER
Show cause notice challenged - violation of principle of natural justice - Opportunity of being heard - as per assessee the authority concerned has already made up mind and this notice has been issued only to project that opportunity of hearing is sought to be given to the petitioner before passing the same order for which decision has been taken by the authority and it has been communicated in the show cause notice itself - Supreme Court after condoning the delay and granting the leave and hearing the counsel held that paragraphs 15 and 16 of the show cause notice dated 15-10-2012 requires to be changed, as the language used in it is improper - paragraphs 15 and 16 shall be recast and the amended paragraphs of the said show cause notice shall be sent to the noticee within six weeks.
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2013 (10) TMI 1315 - GOVERNMENT OF INDIA
Rejection of request of reconstruction of the file - applicant have not furnished EP copy and original exporter copy of the shipping bill and furnished only the photocopy of the shipping bill which is not the valid document to claim drawback - applicant applied for reconstruction of file on the ground that on the date of customs clearance, EDI system was not working, therefore the goods were manually cleared - Held that:- appellate authority has observed that the EDI system was not functional on 6-6-2009 i.e. on the date of filing of Shipping Bill and the triplicate copy of impugned Shipping Bill was retained by the customs. - observation of appellate authority has not been disputed by the department by any documentary evidence, hence, the observation of appellate authority that original triplicate copy of Shipping Bill was retained by the customs required to be upheld. - appellate authority has mentioned that the applicant deposited their EP copy of SB with DGFT to claim the benefit of ‘Focus Product Scheme’ and the proof of submission of EP copy with the DGFT was also submitted for reconstruction of file. The Para 2.23 of Handbook of Procedures of DGFT it is stipulated that whenever original documents have been submitted to different nominated agency/RA, applicant can furnish photocopy of documents duly certified by him in lieu of original. Therefore, Government notes that Commissioner (Appeals) has committed no error in allowing appeal of respondent. - Decided against Revenue.
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2013 (10) TMI 1314 - GOVERNMENT OF INDIA
Denial of duty drawback claim - Claim sanctioned previously - notification No. 84/2010-Cus. (N.T.), dated 17-9-2010 - Rule 19(2) - Commission upheld denial of drawback claim but set aside penalty - Held that:- respondent M/s. Rama Phosphate Ltd. is a manufacture who sold the goods to merchant exporter M/s. Pradeep Overseas Ltd. The merchant exporter has not declared the fact of procurement of raw materials duty free under Rule 19(2) by the manufacturer, in the relevant shipping bills. Manufacturer has not made any such misdeclaration in any document. The allegation of his connivance with the merchant exporter is without any documentary evidence. As such the respondents can not be held liable to penal action under Section 114 of Customs Act, 1962. Government do not find any infirmity in the impugned orders-in-appeal as regards dropping penal proceedings against the respondent and therefore uphold the said upto the extent of dropping penal action against the respondent. - Decided against Revenue.
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2013 (10) TMI 1313 - SC ORDER
Quantum of conviction of sentence - Supreme Court dismissed the appeal filed by the assesee against the decision of Tribunal [2014 (5) TMI 903 - CESTAT NEW DELHI], wherein Tribunal held that sentence required to be imposed on the respondent even on plea bargaining in terms of Section 265E(c) was one and a half years imprisonment. The respondent in this trial had remained in custody for a period of 7 months. Thus the learned Trial Court committed serious illegality in sentencing the respondent on the period of imprisonment already undergone when the minimum sentence required to be awarded under Section 265E (c) was 1 year.
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2013 (10) TMI 1312 - CESTAT BANGALORE
Denial of refund claim - Provisional assessment - Unjust enrichment - Issue of credit notes and cheques - Held that:- It is settled law that quantity discount cannot be treated as part of transaction value at the time of removal, even though the quantum and eligibility thereto is determined at a later date. - even in cases where there is a subsequent reduction in price pursuant to a price variation clause in an agreement between the buyer and seller, the assessee was required to discharge duty only at the reduced price and that whether the assessment is provisional or not is not at all relevant. - both the price and the rate of quantity discount offered are admittedly constant, as known at the time of clearance and hence, there is no change in price, but merely a discounted price on fulfilment of the pre-condition for availability of the discount. - rejection of the refund claims on merits is contrary to well settled law and therefore not legally sustainable.
When the refundable amount collected initially by the buyer is returned by way of credit notes, refund cannot be denied by invoking the bar of unjust enrichment - assessee has created a situation whereby, there would be only refund claim to be made on the basis of actual quantity discount that is passed on by way of credit notes. The assessee is not passing on the quantity discount by determining it in advance and pay the differential duty where the dealer is not eligible. In case like this, if the assessee were to approach the department for provisional assessment, the Additional Commissioner/Deputy Commissioner would have normally refused to allow provisional assessment since there is no differential duty payable and there is no need for any security or cash deposit since there is no question of any differential duty demand that may arise as a result of provisional assessment. This is a case where the assessee knows definitely there would be only a refund claim since the assessee is paying duty without allowing any quantity discount and therefore only a reduction in the transaction value would occur and consequently only refund claim will arise. The scheme of the act has already been discussed and this would show clearly that this is not what the law proposes.
What the appellant has done is that appellant has not passed on the quantity discount to the dealers initially and only at the end of the month the benefit is passed on in the form of credit notes. We all are aware that the first stage dealer or a second stage dealer can pass on the excise duty paid as Cenvat credit to the customer who can take it and utilize the same for payment of duty and final product. It is nobody’s case that paper is sold only to consumers who cannot take credit. No doubt the provisions of Section 11B do not contemplate verification as to whether a buyer has passed on the credit or not. - law does not contemplate any verification down the line because only the person who has suffered the duty has to claim the refund. In the situation created by the assessee in this case, a dealer might have passed on the duty liability to the customer or might have even passed on the amount of duty paid as Cenvat credit if the goods purchased from the appellant has already been sold by the dealer in the course of the normal trade.
Even if provisional assessments were to be resorted to, the assessee may not be eligible for refund in view of the fact that no assessee can be allowed to create a situation where unjust enrichment of any person is possible as per the decision of the Hon’ble Supreme Court [1995 (5) TMI 28 - SUPREME COURT OF INDIA], since the same is not required, we are not going into further detailed discussion on this aspect and would not like to give it as our conclusion - even if provisional assessments were to be resorted to, the assessee may not be eligible for refund in view of the fact that no assessee can be allowed to create a situation where unjust enrichment of any person is possible as per the decision of the Hon’ble Supreme Court, since the same is not required, we are not going into further detailed discussion on this aspect and would not like to give it as our conclusion. - appellant has not made out a prima facie case for waiver or stay against recovery. Therefore, the appellant is directed to deposit the entire amount of refund sanctioned to them and demanded back within eight weeks - Decided against assessee.
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2013 (10) TMI 1311 - GOVERNMENT OF INDIA
Denial of rebate claim - goods were not manufactured by the applicant and the same was purchased as inputs and duty on such exported goods should have been paid equivalent to the amount of Cenvat credit availed as instead of duty paid in terms of Section 4 of the Central Excise Act, 1944 - Held that:- From perusal of Rule 3(5), it is unambiguously clear that when any inputs are removed as such from factory, duty of an amount equal to the credit availed in respect of such inputs shall be paid. In this case applicant has no duty paying invoice for the said goods therefore duty paid nature of goods and availment of Cenvat credit on said inputs cannot be established. There is no option to assess the inputs cleared as such under Section 4 and pay duty since the provision of Rule 3(5) of Cenvat Credit Rules, 2004 are applicable in this case. Government finds that observations made by appellate authority as reproduced in para (8) above in context of said Rule 3(5) of Cenvat Credit Rules, 2004 is legal and proper. Hence, Government concurs with the findings of the appellate authority. Government finds no infirmity in the order of Commissioner (Appeals) and hence, upholds the same. - Decided against assessee.
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2013 (10) TMI 1310 - GOVERNMENT OF INDIA
Denial of Rebate claim - Respondents have not furnished the Bill of Exports against all the copies of the said ARE-1s - SEZ Unit - Held that:- Export duty is leviable under Section 12 of Customs Act and definition of export as given in Section 2(18) is relevant for charging export duty. Hon’ble High Court has further held that for charging duty under Section 12 definition of export as given in SEZ Act cannot be incorporated. In the instant case the issue export benefit like rebate/drawback cannot be equated with the issue of charging export duty.
As per Section 5 of SEZ Act, 2005, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Rule 30(1) of SEZ Rules, 2006 stipulates that DTA supplier shall clear the goods to SEZ Unit or Developer as in the case of exports either under bond or as duty paid goods under claim of rebate on the cover of ARE-1 referred to in Notification No. 42/2001-C.E. (N.T.), dated 26-6-2001. The said notification is now replaced by new Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. Similarly, drawback benefit and other export entitlements are also made admissible to SEZ suppliers. So the C.B.E. & C. Circular issued in the light of provisions of SEZ Act/Rules cannot be called illegal as contended by department.
Commissioner (Appeals) has categorically recorded in his findings that said goods were received in the SEZ Unit and therefore receipt of duty paid goods in SEZ Unit is not in dispute. The non-preparation of bill of export is a procedural lapse for which substantial benefit of rebate cannot be denied - rebate claim of duty paid on goods cleared to SEZ is rightly held admissible by Commissioner (Appeals) under Rule 18 of Central Excise Rules, 2002 read with Notification No. l9/2004-C.E. (N.T.), dated 6-9-2004. Government finds no infirmity with said order-in-appeal and therefore upholds the same. - Decided against revenue.
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2013 (10) TMI 1309 - GOVERNMENT OF INDIA
Denial of rebate claim - exemption granted under Section 5A(1A) of Central Excise Act, 1944 - 100% EOU - Held that:- Notification No. 24/2003-C.E., dated 31-3-2003 was issued under Section 5A(i) of Central Excise Act, 1944. The goods manufactured by 100% EOU and cleared for export are exempted from whole of duty unconditionally. Therefore in view of provisions of sub-section (1A) of Section 5A, the applicant manufacturer has no option to pay duty. Government notes that there is no condition for availing exemption from payment of duty on goods cleared for exports. Normally the 100% EOU has to clear goods for exports as per the EOU scheme. Since there is no condition in the notification for availing exemption to goods manufactured by 100% EOU and cleared for export, the provisions of sub-section (1A) of Section 5A(1) are applicable and no duty was required to be paid on such export goods. As such rebate claims were rightly held by Commissioner (Appeals) to be inadmissible in terms of Rule 18 of Central Excise Rules, 2002.
As such the excess paid amount/duty is required to be returned to the respondent in the manner in which it was paid by him initially. - Therefore, the original authority is directed to allow re-credit in Cenvat credit account of said amount. - Decided partly in favour of assessee.
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2013 (10) TMI 1308 - GOVERNMENT OF INDIA
Denial of drawback claim - applicant manufactured/exported the product in question contained raw material on which no duty was paid - applicant availed Cenvat credit on capital goods - violation of para 13 of the Notification No. 103/2008-Cus. (N.T.), dated 29-8-2008 - Whether the drawback claim, arising out of export of cotton yarn is hit by the proviso (ii) to the Rule 3(i) of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995, or not - Held that:- From harmonious perusal of Circular/clarification, it is clear that AIR rate of DBK is available even where the inputs used in the export have suffered “Nil” rate of duty, because the drawback rate arrived at by taking into account also the duties suffered on export product at prior stage of manufacture. Further, taxes paid as input services and duty suffered on packing materials are to be factored in. As such, denials of AIR of drawback only by quoting Rule 3(1)(ii) of said Drawback Rules without considering clarification issued by the Board from time to time, is not correct and hence, is not tenable.
Original authority also observes that the applicant has availed Cenvat facility of capital goods and hence violated the Provision contained in Board’s Circular No. 103/2008-Cus. (N.T.), Government observes that condition of non-availment of Cenvat credit referred to in the context of said circular means non-availment of Cenvat credit on input or input services. The C.B.E. & C. vide Circular No. 42/2011-Cus., dated 22-9-2011, has clarified that the expression : “when Cenvat credit facility has not been availed”, means Cenvat facility on inputs and input services and is to be understood as such. Hence, observation of lower authority on this count also is not tenable. Government further notes that Commissioner (Appeals) in his subsequent Order-in-Appeal No. 38/BPL/13, dated 5-2-2013, in the case of M/s. Anant Raison MP, has allowed drawback claim in such case. Therefore, Government holds that drawback claims in these cases are admissible to the applicant. - Decided in favour of assessee.
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2013 (10) TMI 1307 - GOVERNMENT OF INDIA
Denial of duty drawback claim - fixation of brand rate - department returned the application stating that the applicants are required to file application before proper authority i.e. Development Commissioner, SEZ - Bar of limitation - Held that:- Initially the applicant filed application for fixation of brand rate on 13-6-2006 with reference to Shipping Bill No. 4226170 which was given LEO on 27-4-2006 i.e. within 60 days time from date of LEO as stipulated in above said Board’s Circular dated 6-3-2003. The said application was returned by the jurisdictional Customs authority by stating that Development Commissioner is proper authority for claiming drawback in their case. After receipt of decision in the matter of Development Commissioner, it was finally settled that jurisdictional Customs authority, who initially returned the drawback application are proper authority for filing such applications. The applicant, thereafter, filed drawback application again on 21-9-2007, which was rejected by the original authority on the ground of time limitation. - applicant initially filed rebate claim within stipulated 60 days. Hence, the applicant cannot be faulted for subsequent late submission of application after getting the clarification regarding proper authority on pursuance of department only. - Decided in favour of assessee.
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2013 (10) TMI 1306 - GOVERNMENT OF INDIA
Duty drawback claim - Non discharge of obligation of producing the export realization certificate as stipulated under the duty Drawback Rules - Held that:- Applicant can submit certificate about realization of export proceeds in the prescribed format either from said dealer or Chartered Accountant in his capacity as a statutory auditor of the exporter’s account. The appellate authority in its findings has observed that the M/s. S.A. Faujdar & Co., Chartered Accountant who certified the negative statement, is not a statutory auditor of the company. This fact has also been admitted by the applicant. However, the applicant submitted certificate of authorized dealer before Commissioner (Appeals) and this fact is also admitted by appellate authority. However, appellate authority did not consider the certification stating that the same were not submitted before proper authority i.e. the original authority. Government finds that his observation of Commissioner (Appeals) is not proper. Once, the applicant duly submitted certificate from authorized dealer, he has complied with requirement of above said Circular dated 2-2-2009. Under such circumstances, Government finds that order of appellate authority is not proper and hence, not sustainable. However, Government notes that these certificates issued from authorized dealer were not before original authority - Matter remanded back - Decided in favour of appellant.
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2013 (10) TMI 1305 - GOVERNMENT OF INDIA
Confiscation of goods - Non declaration of commercial quantity of diamonds imported in India - Import of diamonds for making jwellery - Held that:- The said goods imported through Baggage being in commercial quantity, not declared before customs and found concealed, would fall in the category of ‘smuggled goods’. Further the importation is in violation of Sections 77 and 79 of Customs Act, Section 3(3)/11 of the Foreign Trade (Development & Regulation) Act, 1992, para 2.20 of the Foreign Trade Policy (2009-14), and Rule 3 of Foreign Trade (Exemption from Application of Rules in Some Cases) Order, 1993. There is therefore, a prohibition in law for the import of goods except in compliance with the Foreign Trade Policy. Non-compliance of these provisions renders the goods (prohibited goods) liable for confiscation under Section 111 of the Customs Act, 1962. - importation or exportation could be subject to certain prescribed conditions, to be fulfilled before or after clearance of goods. If the conditions are not fulfilled, it may amount to prohibited goods in terms of Sections 2(33), 111(d) and 113(d) of the Customs Act, 1962. - benefit of exemption was not available as the goods were attempted to be smuggled into India. As per Customs Tariff the diamonds attract duty and hence said goods are classifiable under heading 9803. The goods were liable to confiscation for violation of provision of law - Decided against assessee.
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2013 (10) TMI 1304 - ITAT MUMBAI
Disallowance under section 14A - quantifying the borrowing attributable to the balance investment in shares and units (Rs. 156.12 lakhs), i.e., after deducting the amount of borrowings for the said investment made from Kotak Mahindra Prime Ltd. at ₹ 205 lakhs - Held that:- CIT(A) has in applying the average method, erred inasmuch as he has adopted the figure of the total investment (at ₹ 795 lakhs), i.e., as per balance-sheet, even as investment to the extent of ₹ 205 lakhs stands already confirmed to be sourced from the borrowings from Kotak Mahindra Prime Ltd., so that it is only the balance investment in business that is to be taken into account, i.e., in the denominator, excluding ₹ 205 lakhs both from the value of the exempt investment as well as the total investment. Needless to add, if the bank loans are dedicated funds, toward financing working capital, application of which is demonstrated, the same would also warrant a similar exclusion to the extent it is funding by borrowed capital is established. Unless, however, the same is perceptibly demonstrated, the common pool of funds hypothesis, could apply, being reasonable, so that all the funds, howsoever derived, are construed as having financed the relevant investments proportionately.
Thus consider it fit and proper that the matter qua the disallowance under section 14A with reference to the interest attributable to the balance investment of ₹ 156.12 lakhs is restored back to the file of the learned Commissioner of Income-tax (Appeals), so as to allow the assessee an opportunity to present its case before him, and who shall decide the same in accordance with law, issuing definite findings of fact, and after hearing both parties, giving the assessing authority due opportunity to examine and rebut the assessee's case. Decided in favour of assesse by way of remand.
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2013 (10) TMI 1303 - CESTAT MUMBAI
Clandestine removal of goods - Shortage of goods - Bogus invoices - Demand of differential duty - Confiscation of goods - Redemption fine - Held that:- As regards the quantity of goods cleared, the Revenue has arrived at a figure of 69,269.21 kgs., and this is based on the entries made in the register maintained at the security gate which indicated the number of cartons cleared, the quantity of goods cleared and the numbers of the vehicles in which the goods had been cleared. The appellant itself has admitted to a clandestine clearance of about 35 to 40 MTs in the statements of its various officials and it has been admitted that such production and clearance were not accounted for in the statutory records. A shortage of 35 MTs of terry towels were recorded during the stock taking done on 28/29-9-1996 and the appellant has not been able to satisfactorily explain the shortage and the reasons therefor. Since the 35 MTs of clandestine clearance has not been accounted for in the statutory records, they could not have formed part of the inventory of stock which was examined on 28/29-9-1996. Thus we have two sets of clearances, one pertaining to clandestine clearance of about 35 MTs without accountal anywhere as admitted by the appellant’s officials and the other relating to the shortage of 35 MTs vis-a-vis the stock mentioned in the books of accounts. These two together account for about 70 MTs of goods cleared without payment of excise duty. - Therefore, the quantity of clandestine clearance taken at 69.26 MTs has a strong and reasonable basis. Accordingly, we hold that the duty demand on this quantity is clearly sustainable in law.
If we apply the rate applicable to clandestine clearance of terry towels from 100% EOUs on par with the rate applicable to domestic units, the rate of duty applicable would be 10% adv. During the impugned period, for licit clearances from 100% EOUs made with the approval of the Development Commissioner, the rate applicable was 50% of each of the aggregate duties of customs leviable on like imported goods into India. During the impugned period, the normal customs duty rates were 25% BCD, 2% SCD and 10% CVD. Aggregate of 50% of each of these duties would work out to 19.175%. Thus it would result in an absurd and illogical situation where the clandestine clearances would attract a lower duty rate (10%) when compared to the duty rate applicable on licit clearances (19.175%). Such an interpretation and application of law would promote tax evasion and not tax compliance and would be completely contrary to the object of the legislation.
Excise duty rate that would apply to clearances into DTA from a 100% EOU even for the period prior to the amendment would be equal to the customs duty rate leviable on like goods when imported into India. Therefore, if we undertake a purposive construction with a view to suppress the mischief and advance the remedy, the confirmation of duty demand by the adjudicating authority at a rate equal to the aggregate of each of the customs duties is correct and sustainable in law.
Based on this production, the appellant has been permitted to clear terry towels of quantity not exceeding 43,402 kgs. of value not exceeding ₹ 81.77 lakhs during the period 7-4-1997 to 30-9-1997. The permission granted will operate from the date of issue of the permission and not for the earlier period and this is what is envisaged under the Export and Import Policy 1992 to 1997. In other words, the permission granted is not for the clearances already effected but for the clearances to be effected subsequently. Thus there is no merit in this contention and accordingly, we uphold the duty demand of ₹ 67,87,507/- confirmed against the appellant in respect of the clandestine removal of 69,267.21 kgs. of terry towels during April to September, 1996.
Appellant did not apply for any permission for clearance into DTA after the earlier permission granted expired in March, 1995. Therefore, it cannot be said that clearances were effected pending grant of any permission. Inasmuch as there is no permission granted by the Development Commissioner for the clearances made during 1995-96, the appellant would not be eligible for the benefit of Notification No. 2/95-C.E. as the concessional rate provided therein is in respect of clearances made in accordance with the permission granted by the Development Commissioner. Thus the demand of differential excise duty of ₹ 9,21,795/- is clearly sustainable in law
Goods were not put to use for the intended purpose. In any case the value of the raw materials is already included in the value of the finished goods which have been cleared illicitly. If duty is demanded separately, once on the inputs and again on the finished goods, it would lead to double demand of duty which is not sustainable in law.
As regards the confiscation of goods valued at ₹ 7.23 lakhs seized on 1-10-1996, the confiscation is sustainable inasmuch as the goods were cleared without payment of duty and under the cover of bogus documents. An option to redeem the same on payment of a fine of ₹ 2 lakhs has been given by the adjudicating authority and we find that the fine is not excessive and therefore, we uphold the same. However, in respect of the seized vehicle valued at ₹ 3 lakhs, which is confiscated and allowed to be redeemed on payment of fine of ₹ 75,000/-, the amount of fine seems to be much on the higher side. The driver/owner of the tempo cannot be held responsible for the evasion of excise duty by the appellant firm though the vehicle has been used for transportation of duty evaded goods. Therefore, only a nominal fine is warranted and accordingly, we reduce the redemption fine from ₹ 75,000/- to ₹ 10,000 - Decided partly in favour of assessee.
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2013 (10) TMI 1302 - CESTAT MUMBAI
Demand of differential duty - Revenue was of the view that the appellant was liable to discharge excise duty liability on freight charges borne by NTPCL in terms of Rule 5 of the Central Excise Tariff Rules, 2000, inasmuch as in the relevant invoices, the appellant did not indicate the freight charges separately and also what was permissible to be deducted was only the actual cost of transportation and not equalized freight @ ₹ 600/- per MT - Held that:- The primary condition for invoking Rule 5 is that the excisable goods should be sold. In the present case, the transaction is one of job work and there is no sale of goods involved of the material supplied by the NTPCL. The appellant has undertaken certain processes and returned the goods to NTPCL after collecting their conversion charges. The invoice raised clearly shows that no sales tax has been paid in these transactions. In other words, there is no sale transaction involved. Therefore, the contention of the ld. Counsel for the appellant that Rule 5 cannot be invoked ab initio is correct. In any case, the appellant has discharged excise duty liability on a price which is equal to or higher than that arrived under the Ujagar Prints formula and this is not disputed. If that be so, the appellant has discharged the duty liability correctly. - Decided in favour of assessee.
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2013 (10) TMI 1301 - GOVERNMENT OF INDIA
Denial of rebate claim - Whether rebate of duty paid on exported goods is not admissible for violation of Condition No. (viii) of Customs Notification No. 96/2009-Cus., dated 11-9-2009 - Held that:- Rebate of duty paid on goods exported (finished) in discharge of export obligation under advance licence scheme in terms of Notification No. 43/2002-Cus., dated 19-4-2002 as amended vide corrigendum dated 29-11-2002 is admissible since the amended Condition (v) of said notification debarred only the availment of rebate of duty paid on inputs/raw materials used in the manufacture of finished exported goods. The said Notification No. 43/2002-Cus. was subsequently replaced by Notification No. 93/2004-Cus., dated 10-9-2004. In view of the position, the rebate claim of duty paid on export goods (finished goods) cannot be rejected on this ground since there is no violation of Condition (viii) of Notification No. 96/2009-Cus., dated 11-9-2009 which debars only the facility of rebate of duty paid on inputs used in the manufacture of exported goods.
Original authority on scrutiny of rebate claims had not found any other discrepancy in the rebate claim other than the discrepancy noted. As such, it is clear that rebate claims were found in order and there was no dispute about the export of duty paid goods. As such the fundamental condition for allowing rebate claims that duty paid goods are exported, already stands satisfied in this case. Therefore, the said rebate claims are admissible to the applicant under Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. - Decided in favour of assessee.
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