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Case Laws
Showing 361 to 380 of 915 Records
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2010 (7) TMI 871 - CESTAT CHENNAI
CENVAT credit - reversl - separate records not maintained - Held that: - Rule 6 which is the relevant rule in the present case, is pari materia with Rule 57CC in the sense that both require manufacture of two categories of products, namely, one excisable and the other exempted - decided against Revenue.
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2010 (7) TMI 870 - CESTAT MUMBAI
Pre-deposit - CENVAT credit - manufacture of exempt goods - Parts captively used for manufacture of tractor for export - demand - Held that: - the appellants have not made out a case for total waiver of pre-deposit. Accordingly, we direct them to pre-deposit an amount of ₹ 7.5 crores (Rupees Seven crore Fifty lakhs) (50% approximately of the disputed amount) - appeal disposed off - decided partly in favor of appellant.
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2010 (7) TMI 869 - CESTAT BANGALORE
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... ... ..... ation dues. 3. Since the stay petition was dismissed by us for the goods being attached by the authorities, we find that the action sought to be taken by the authorities for auctioning the goods is incorrect. The lower authorities are restrained and directed not to proceed further for auctioning the goods, till the disposal of appeal. As the matter is covered by the judgment of the Hon ble High Court of Punjab and Haryana, we accept the prayer of the ld. Counsel and Registry is directed list the appeal for hearing on 30-9-2010. (Pronounced and dictated in open Court)
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2010 (7) TMI 868 - CESTAT NEW DELHI
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... ... ..... t credit was taken illegally. If an illegality in use is noticeable, the order should have been self speaking and reasoned. That being absent in the present matter from either of the orders pre-deposit is dispensed with and the matter is sent back to the Adjudicating Authority with the direction to re-examine the evidence available on record and grant fair opportunity of hearing to the appellant. Upon hearing of the matter, the controversy should be decided by a reasoned and speaking order clearly depicting the matter in controversy, submission of the assessee as well as law applicable and evidence available on record whether tested. It would be proper to complete the exercise within 3 months of the receipt of this order issuing proper notice to the appellant. Consequently both, stay application and appeal are disposed off. 3. After closure of hearing Shri Bipin Garg, learned Advocate appeared. Accordingly, his presence is recorded. (Dictated and pronounced in the Open Court)
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2010 (7) TMI 867 - CESTAT AHMEDABAD
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... ... ..... . As such, the demand of duty raised in January 2005 is clearly beyond the limitation period. Arguments of the learned SDR that new Section 4 came into force in 2000 itself and as such the enquiry raised in 1996 will not cut short the period of limitation cannot be appreciated and we are not convinced with the above argument of learned SDR. The reference to the enquiry raised in 1996 is only to show that the entire facts were in the knowledge of Revenue and nothing was suppressed or mis-stated by them. The amendment of 2000 was also in the knowledge of the Revenue. Even then, the Revenue took a period of 5 years to issue show cause notice. In the absence of any mala fide on the part of the appellant, longer period is not available to the department to raise the demand. 8. As such, without going into merits of the case, we set aside the impugned order on the point of limitation and allow the appeal with consequential relief to the appellant. (Dictated and Pronounced in Court)
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2010 (7) TMI 866 - CESTAT MUMBAI
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... ... ..... subscribe to the view of the learned DR that once Rule 25 ibid is subject to provisions of Section 11AC it automatically becomes applicable in the case wherever Rule 25 ibid is invoked. On a query from the Bench as to which sub-rule has been contravened, there was no satisfactory answer to the query. So far as the decisions of the Tribunal cited by the learned DR, in the case of Kurele Industries (supra) there was a charge of contravention of Rule 52A against the dealer in that case. In the case of Baldev Ram Murti (supra) there was a contravention of Rule 57G and the penalty was imposed under Rule 173Q of erstwhile Central Excise Rules, 1944 and the Rules 9 and 15 of the CENVAT Credit Rules, 2004 were also invoked. These cases are not applicable to the instant case. Therefore, the imposition of penalty under Rule 25 imposed on the appellant in the case is not sustainable in law. 6. In view of the above, I allow the appeal and set aside the impugned order. (Dictated in Court)
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2010 (7) TMI 865 - CESTAT KOLKATA
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... ... ..... t now in the written submission before us produced a table showing the use of the capital goods in the plant. In these circumstances we find the matter requires re-consideration by the adjudicating authority. The impugned order whereby the credit of Rs. 18,58,227.51 (Rupees Eighteen Lakhs Fifty Eight Thousand Two Hundred and Twenty Seven and Fifty One paisa only) was disallowed and penalty of Rs. 1,00,000/- (Rupees One Lakh only) was imposed is set aside and matter is remanded to the adjudicating authority to decide afresh after affording an opportunity of hearing to the Appellants. The Appellants are directed to appear before the adjudicating authority on 30-8-2010 and thereafter the adjudicating authority will fix the date of hearing. Both the sides are at liberty to produce evidence in support of their claim before the adjudicating authority and thereafter the adjudicating authority will decide within a period of 3(three) months. (Pronounced and dictated in the open court)
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2010 (7) TMI 864 - CESTAT NEW DELHI
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... ... ..... sub-rule (5) for availing credit in terms of Rule 57G essentially refers to the ldquo date of issuance of the documents rdquo enlisted under sub-rule (3) of Rule 57G and the same does not relate to entry in RG-23 A Register either in Part-I or Part-II. RG-23 A Part-I relates to stock account of inputs for use in or in relation to the manufacture of final products and Part-II thereof relates to entry book of duty credit. The period of limitation, therefore, is not to be counted from the date of entry in either of the registers but from the date of issuance of the documents received in relation to the inputs which are received in the factory under the cover of such documents. Only condition is that the such documents should be one of those documents enlisted under sub-rule (3) of Rule 57G. 9. The point under consideration, therefore, is answered in above terms. Registry is directed to place the matter before the concerned ld. Single Judge for appropriate decision in the facts.
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2010 (7) TMI 863 - CESTAT BANGALORE
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... ... ..... GB rdquo will definitely attract the mischief of clauses of Notification No. 8/2003 and the respondent is not eligible to avail the benefit on this ground only. At this juncture learned Chartered Accountant submits that the products which were cleared from the factory by using inscriptions as stated above are only for a short period and not for the entire period of the show cause notice. Since there is nothing on record to appreciate the submissions made by learned Chartered Accountant, we are constrained to remand the matter for a limited purpose of requantification of the amount of duty for the period wherein they had used the inscriptions on their final products. We set aside the impugned order to the extent as indicated herein above. 9. The adjudicating authority may also consider imposition of penalties depending upon the amount of duty liability that may arise in the limited remand. Appeal is disposed of as indicated herein above. (Pronounced in open Court on 14-7-2010)
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2010 (7) TMI 862 - CESTAT AHMEDABAD
Penalties u/s 76 and 77 of FA - violation of provisions of Section 70 of Finance Act, 1994 since the return was delayed by 187 days - violation of Section 68 of Finance Act, 1994 since there was a delayed payment of service tax ranging from 286 days to 194 days - Held that:- The benefit of Section 80 of Finance Act, 1994 cannot be extended to the appellant inasmuch as they were aware of their responsibility to file the return in time and to deposit tax within the period. Having not done so, they have invited the penalties under Section 76 and 77 of the Act. The penalty under Section 76 has already been kept by the lower authorities equal to the demand, though there was a delay of 766 days and by calculating the penalty @ ₹ 200/-per day as per the provisions of Section 76 of Finance Act, 1994, the same would come to ₹ 1,53,200/-.
Appeal dismissed - decided against appellant.
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2010 (7) TMI 861 - CESTAT AHMEDABAD
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... ... ..... lso note that the adjudicating authority has referred to the letter written by the assessee which stands received by the department on 22-11-93, wherein they have accepted the fact of receipt of notice without making any reference to the actual date of receipt. They have also not taken the plea of time bar in the above referred letter. It is the appellant who is contending that the notice was not received by them before 14-11-93 and as such the onus also lies upon them to show that such notice was actually not received by them on or before 14-11-93. Their reply dt. 22-11-93 makes it clear that the same was received before the said date. Their register produced on record also nowhere shows actual date of receipt. 10. In view of our forgoing discussion, we do not find any merits in the appellant rsquo s contention of the demand being barred by limitation. As the merits have not been contested, we uphold the impugned order and reject the appeal. (Pronounced in Court on 7-7-2010)
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2010 (7) TMI 860 - CESTAT MUMBAI
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... ... ..... ine on 27-4-96 was made on payment of duty by utilizing MODVAT Credit of CVD paid on the second pair of turbochargers imported for the purpose of replacing the first pair in the course of repairs. Where the appropriate amount of duty was paid on the finished product (on the full assessable value including the cost of turbochargers), the manufacturer was entitled to take MODVAT Credit on the turbochargers which were imported on payment of CVD and used in the engine. Accordingly, the appellant cleared the engine finally on 27-4-96 on payment of appropriate duty on the full assessable value by utilizing MODVAT Credit of the CVD paid on newly imported set of turbochargers. This transaction was also perfectly lawful and the same did not give rise to a cause of action for the department to ask the party to reverse the MODVAT Credit lawfully taken on the original set of turbochargers. 3. In the result, the impugned order is set aside and this appeal is allowed. (Pronounced in Court)
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2010 (7) TMI 859 - CESTAT NEW DELHI
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... ... ..... to become adjudicating authority. 5. Averment of Revenue shall not get legal recognition for the well settled position of principles of natural justice as contended by learned Counsel for Assessee. Since adjudication is challenged on the issue of legal infirmity, it is in the interest of both sides to prove identity of the adjudicating authority and to show whether Investigation officer and adjudicating officer was one and the same. This point as well as merits shall be tested in the course of regular hearing. Noticing that the adjudication has prima facie suffered from legal infirmity and the appellant firm has already deposited the duty element there shall be stay of realization of penalty against Shri Saurabh Ghai, partner and so also waiver of penalty against the M/s. Bansiwala Iron and Steel Roiling Mills during pendency of their appeals. 6. In view of the aforesaid orders, COD application and Stay application are disposed off. (Dictated and pronounced in the Open Court)
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2010 (7) TMI 858 - CESTAT NEW DELHI
CENVAT credit - shapes and sections falling under chapter sub-heading 7216.10 - capital goods or not? - Held that: - the components, spares and accessories of the goods which are meant for Serial No. (i) and (ii) of definition of capital goods, RULE 2(a), are only covered as capital goods as per the definition. Therefore, while it is true that moulds are to be considered as capital goods, because of nature of definition, the shapes and sections which have been used for fabrication of moulds cannot be treated as capital goods - denial of credit upheld.
Extended period of limitation - Held that: - the demand is time barred also cannot be accepted as department was not privy to appellants using the inputs for manufacture of moulds as they have not claimed any exemption in respect of the moulds specifically in their ER I returns - the amount of penalty also reduced to ₹ 2,000/-.
Appeal disposed off - decided partly in favor of assessee.
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2010 (7) TMI 857 - CESTAT AHMEDABAD
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... ... ..... he ER-1 returns, find out whether these are any clearance to M/s. NCPL or if so call for their details. But no such thing was done. In view of this, the allegation that the assessee company taking advantage of the system of self assessment paid duty in respect of clearances of CAN to M/s. NCPL at a lower value and did not inform the department about this fact with intent to evade payment of duty is not sustainable. rdquo 7. Inasmuch as the Commissioner has himself held that there was no suppression or mis-declaration attributable to the appellants, invocation of longer period is not justified. We have already dealt with finding of the Commissioner as regards invocation of Section 11A(2B) and Commissioner having himself held that longer period is not available to the department, we find no merits in the impugned order of the Commissioner. The same is accordingly, set-aside and appeal is allowed with consequential relief to the appellants. (Dictated and pronounced in the Court)
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2010 (7) TMI 856 - CESTAT NEW DELHI
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... ... ..... Department to do so. Even today we have not been able to peruse the copies of such documents. In order to show the bona fide on the part of the Department in that regard, it was expected from the Department not only to furnish the copies of such documents to the respondents but also to place the copies thereof on record before us in the present appeal proceedings. Failure in that regard discloses lack of bona fide on the part of the appellants. 9. Once it is clear that the respondents were sought to be issued show cause notice without furnishing copies of relied upon documents and even the efforts were made on the part of the respondents to get the same did not yield any fruitful result and even today the copies of the documents are not made available to the respondents, we do not find any case for interference in the impugned order. 10. For the reasons stated above, therefore, there is no case for interference in the impugned order. The appeal fails and is hereby dismissed.
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2010 (7) TMI 855 - CESTAT NEW DELHI
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... ... ..... As a result, the order of the Commissioner (Appeals) in holding that the appeal filed by the appellants was barred by time cannot be sustained. 7. It is unfortunate that the department has not taken care to see and implement the directions of the Tribunal dated 11-4-2007 properly. It is also not appreciated that the orders of the original authorities are sought to be served or claimed to have been served casually and not in a manner prescribed under Section 37C of the Central Excise Act, 1944. 8. The Commissioner (Appeals) having held that the appeal was time-barred, have not gone into merits of the case. In view of the above, the order of the Commissioner (Appeals) is set aside and holding that the appeal is filed before the Commissioner (Appeals) within the stipulated time. Commissioner (Appeals) shall decide the appeal on merits after granting reasonable opportunity of hearing to the appellants. 9. The appeal is allowed by way of remand. Stay petition is also disposed of.
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2010 (7) TMI 854 - CESTAT NEW DELHI
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... ... ..... t of Shri Kamruddin, the burden of proving that M/s. Servokon and M/s. PS were really independent units shifts on Sh. Kamruddin, but no evidence in this regard has been produced by them. We, therefore, are of the view that the Department has a strong prima facie case and it is not a case of granting total waiver from the provisions of Section 35F. In view of this, we direct M/s. Servokon to pay an amount of Rs. 18,11,317/- and Sh. Kamruddin, Director of M/s. Servokon to pay an amount of Rs. one lakh within a period of eight weeks from the date of this order. The amount to be paid by M/s. Servokon is in addition to the amount of Rs. 2,00,000/- already paid by them. Compliance to be reported on 4-10-2010. On payment of these amounts by the Appellants within the stipulated period, the requirement of pre-deposit of interest and balance amount of penalty shall stand waived and recovery thereof stayed till the disposal of the appeal. (Order pronounced in the open court on 9-7-2010)
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2010 (7) TMI 853 - CESTAT BANGALORE
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... ... ..... d invoices excepting in one case. We find that the impugned order has sustained the order of the original authority ignoring the explanations and arguments advanced by the appellants. The demand of duty on higher grade material has been sustained instead of demanding differential duty as would have been justified in the light of the proposal in the show cause notice. We are inclined to agree with the appellants that no demand of duty can be raised against the assessee in the absence of reliable evidence of undervaluation and short payment of duty by the assessee during the material period. Mismatch between description in the central excise records and some private records of unreliable authorship cannot be proper basis of any demand of duty. In the circumstances the impugned demand and interest as well as penalty imposed on the appellants are not sustainable. In the result, we vacate the impugned order and allow the appeal filed by AFAL. (Pronounced in the court on 23-7-2010)
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2010 (7) TMI 852 - CESTAT NEW DELHI
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... ... ..... ich is required to be taken in the matter. 17. It is also sought to be contended that the impugned order travels beyond the show cause notice. Apart from the fact that on proper reading of the show cause notice alongwith reply and the impugned order, it is difficult to accept the contention in that regard. In any case the issue rsquo in this respect will have to be considered only at the stage of final hearing of the appeal. It is too early to deal with this aspect in detail. Plain reading of the show cause notice and the impugned order does not disclose any such transgression by the Commissioner while passing the impugned order. 18. Therefore, prima facie, we do not find a case for total waiver of the amount demanded under the impugned order. 19. Taking into consideration the facts and circumstances of the matter on record, therefore, we direct the appellants to deposit 60 of the duty demanded under the impugned order within a period of 10 weeks. For compliance on 1-11-2010.
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