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Central Excise - Case Laws
Showing 101 to 120 of 260 Records
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2012 (12) TMI 708
Receipt of finished goods not mentioned in RG-1 maintained for the new factory - factory of assessee shifted to new premises - seeking waiver of pre-deposit of dues - Held that:- There is a clear finding of the original authority that the assesseee has disposed of the said goods to customers after proper packing and payment of duty utilizing the CENVAT credit taken by them - That being the case, prima facie case in favour of the assessee on this issue.
Issue of credit on input services, prima facie, is settled in favour of the assessee in view of the Stay Order in the case of M/s. Superpacks vs Commissioner of Central Excise, Bangalore []- there shall be waiver of predeposit of dues as per the impugned order and stay of recovery thereof till the disposal of the appeal.
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2012 (12) TMI 707
Transfer of unutilized Cenvat credit – denial as the appellant had not shifted his factory from Sirsa to a new site - Held that:- The Commissioner (Appeals) has interpreted the word 'another site' as a new site where there was no production unit in existence. This approach of the Commissioner (Appeals) is incorrect as the word 'another site' used in Rule 10(1) of Cenvat Credit Rules means the site other than the factory which is being shifted.
No 'Inputs' in the factory of the appellant at Sirsa at the time of shifting - Held that:- This approach of the Commissioner (Appeals) is also unacceptable for the reason that Rule 10(3) of the Cenvat Credit Rules provides that the transfer of cenvat credit under Rule 10(1) shall be allowed if the stock of inputs as such or in process, or the capital goods is also transferred along with factory. Admittedly, as it is evident from the letter dated 26.10.2005 of the jurisdictional Excise Office, Hisar when the Excise team visited the factory of the appellant on receipt of intimation regarding the shifting, they did not find any "Inputs' as such or under process in the stock. If there was no inputs in the stock, there was no occasion for transferring the inputs to the new factory. Admittedly, the appellant has transferred the capital goods to another site at Meerut. Therefore,the condition of Rule 10(3) of Cenvat Credit Rules for transfer of cenvat credit is fulfilled.
No basis for conclusion that the appellant has only shifted the capital goods but not the entire factory as there is no evidence on record to show that the appellant has shifted the factory only on paper and the production is still going on at Dabwali Road, Sirsa - no denial of transfer of cenvat credit warranted - in favour of assessee.
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2012 (12) TMI 706
Clandestine removal of finished goods - FAA granted benefit of provisions of Section 11AC - Held that:- The proprietor of the firm Shri Vinodbhai T. Patel, in his statement dt.20.03.2007, has accepted that there was clandestine removal & two of the purchasers of the appellants finished goods have categorically admitted that they have received the goods from the appellant under delivery challans and without any invoice.
Since there is no retraction of the statements by the proprietor of the assessee and there being corroboration of the receipt of the goods without payment of duty from the assessee from his buyers, the impugned order has correctly upheld the liability on the assessee along with interest and penalties - the assessee should be given the benefit of provisions of Section 11AC of payment of 25% of the duty demanded as penalty if the assessee pays the entire amount of duty liability with interest even at appellate stage well settled in the case of Akash Fashion Prints Pvt. Limited (2009 (1) TMI 113 - GUJARAT HIGH COURT) .
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2012 (12) TMI 679
Early hearing of appeal filled by revenue - Held that:- Appeal which has already been disposed of by this Tribunal earlier dated 21.05.2010 the application for early hearing of the appeal is filed in usual manner without verifying the records;
This type of practice not only the increases work of department but also the increases work of this Tribunal. The concerned officer is directed to avoid this type of practice in future.
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2012 (12) TMI 678
Non maintenance of separate accounts for two types of activities - input services used for manufacturing and trading activities separately - liable to pay duty @10%/5% on their clearances of goods in trading activity as per Rule 6(2) of the CENVAT Credit Rules, 2004 -
Held that:- As the applicants has not taken credit of common input service attributable to trading activity they covered under Rule 6(1) of CENVAT Credit Rules, 2004 and the provisions of Rule 6(2) of CENVAT Credit Rules, 2004 are not applicable. Therefore, they are not liable to pay 10%/5% of the value of the traded goods - applicant has made out a case for 100% waiver of pre-deposit.
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2012 (12) TMI 677
Cenvat Credit denial - failure to prove receipt of the inputs in the factory - Held that:- Evidence recorded to a finding that only invoices were received and no inputs were received at the factory remained un-assailed without leading any contradictory evidence. There was no credible evidence to show that from the origin to destination the goods travelled and reached nor there was any evidence to show that the goods were used in the manufacture of final products.- disallowance of cenvat credit confirmed - Against assessee.
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2012 (12) TMI 676
Undervaluation of Chassis - duty demand - seeking waiver of pre-deposit - Held that:- Chassis received by the appellant for body building were undervalued by TML is one which is apparently still under adjudication at Jamshedpur. The proceedings against the appellant are, therefore, prima facie unsustainable in law. Thus waiver of pre-deposit and stay granted.
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2012 (12) TMI 649
Breach of principle of natural justice - Assessee paid the duty by availing the CENVAT Credit prematurely – AO issue SCN and issue notice for public hearing – Held that:- As the assessee had requested for adjournment of the personal hearing afforded them, which was also acknowledged, however, the impugned Order was subsequently passed ex parte without giving any finding for not granting adjournment. Issue needs to be remanded to the Commissioner to decide the case afresh, by granting the effective hearing to the Appellant. Issue remand back to AO
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2012 (12) TMI 648
Cenvat Credit denied - services related to clearance of finished goods beyond the place of removal - nexus to manufacturing activities - Held that:- As decided in M/s. Lanco Industries Ltd. vs. CCE, Tirupathi [2009 (7) TMI 125 - CESTAT, BANGALORE] the credit of service tax paid on commission to agents is admissible.
M/s. Cadila Healthcare Ltd. vs. CCE, Ahmedabad (2009 (8) TMI 172 - CESTAT, AHMEDABAD) the clearing and forwarding agents services is eligible for cenvat credit of service tax & in case of M/s. Nilkamal Crates and Bins vs. CCE, Vapi (2010 (2) TMI 232 - CESTAT, AHMEDABAD) credit of service tax under business auxiliary services or commission on export sales was held admissible.
Thus all the decisions support the claim of the appellant that they are eligible for the benefit of service tax credit taken by them - in favour of assessee.
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2012 (12) TMI 647
Clearance of samples without payment of duty - Demand of Duty and Imposition of Penalty u/s 11AC - Held that:- As the appellant vide letter dated 7.1.2003 in reply to the Show Cause Notice submitted that the samples were in the form of unpacked tablets and drawn from the bulk prior to packing stage. From this letter, it is clear that the tablets, which are dutiable were cleared without payment of duty from the factory of production. Therefore,no infirmity in the impugned order - against assessee.
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2012 (12) TMI 646
Abatement of Duty - transportation charges, sales tax, dealer's profit and dealer's commission - Held that:- Abatement claimed towards transportation charges were on account of lorry rent, van maintenance, van depreciation, trolley hire and forwarding charges - figures were taken by the assessee from their Profit and Loss account and Balance sheet submitted before the Income Tax authorities and there is no specific challenge against these findings of the learned Commissioner. Moreover, the appellant (assessee) has not claimed that, in the written submissions filed with the adjudicating authority, he requested for supply of any records to be relied upon in support of his abatement claims. If that be so, the present grievance of the appellant with reference to the seized records is without bona fide - no iota of truth in the present grievance of the appellant that natural justice was denied to him - Commissioner granted further abatements after considering the submissions of the assessee and, accordingly, worked out the amount of Rs.1,23,146/- to be paid by him - In the result, this appeal gets dismissed.
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2012 (12) TMI 645
Non-compliance of the stay order - seeking waiver of pre-deposit of impugned demands - Held that:- Appellant had complied with the Stay order passed by the Commissioner (Appeals) and only on the ground of non-communication the dismissal order passed by the Commissioner (Appeals) deserves to be set aside. - as the matter needs verification remand the matter back to the adjudicating authority to verify the relevant records in support of their claim made by the appellant.
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2012 (12) TMI 619
Non payment of Duty - aluminium dross and skimmings - Waiver of pre-deposit of dues - Held that:- As decided in KEC International Ltd. vs. CCE, Jaipur-I (2012 (12) TMI 426 - CESTAT, NEW DELHI) aluminium dross and skimmings are liable to duty whereas on the contrary the Tribunal in the case of Vishal Pipes Vs CCE, Noida [2010 (4) TMI 314 - CESTAT, NEW DELHI] that same are not liable to duty.
In view of the contrary decisions on the same issue, the pre-deposit of the dues is waived for hearing of the appeal and the Registry is directed to list this appeal on 6.12.2012 for hearing.
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2012 (12) TMI 618
Shortage in consignment of waste paper - difference in invoice and bills of entry - Waiver of pre-deposit of duty, interest and penalty - Held that:- In some consignments there is a shortage of 5.61 MT, 15.810 MT and 84 MT respectively, thus in view of these huge shortages received in respect of the goods on which credit has been availed applicants have not made out a case for total waiver of duty - No financial hardship is pleaded - The applicants are directed to pre deposit an amount of Rs.4,00,000/- within eight weeks from order date.
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2012 (12) TMI 617
Abatement on MRP value denied - cannot be applied to physician samples - seeking waiver of pre-deposit of duty and interest - Held that:- As the duty has been paid on MRP basis and the Revenue is not denying, therefore, the abatement cannot be denied. In view of this, pre-deposit is waived for hearing of the appeal - stay allowed.
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2012 (12) TMI 616
Rectification of Mistake - no finding of the penalty imposed by the adjudicating authority in the final order - Held that:- As in the final order in the last para, it has been specifically held that penalty imposed under section (sic) 173Q and under Rule 25 of the Central Excise Rules is set aside. Thus it appears that the application is filed without reading the final order. In view of this, frivolous application is dismissed.
Another miscellaneous application filed by the Commissioner of Customs praying that he may be permitted to sign the application for rectification of mistake dismissed as the ROM application is dismissed.
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2012 (12) TMI 586
Confiscation of goods - Held that:- The finding of the Tribunal that the goods found in the factory are confiscated has not been challenged by the respondent before this Court. Therefore, no decision is called for in this regard.
Redemption fine reduced by Tribunal - Held that:- Reasons provided by the Tribunal as to the facts and circumstances which had led it to reduce redemption fine from Rs.2 lakhs to Rs.50,000/- only is not provided - Tribunal is required to reconsider the issue of imposition of redemption fine.
Duty Demand - 9120 kgs. of Sikandar Gutka of printed laminated flexible film rolls found in the godown of the transporter - Tribunal allowed the appeal - Held that:- The Tribunal has failed to consider that the adjudicating authority had in his order recorded a finding that the respondent were not recording production in production slips/records so as to evade payment of excise duty. However, the order of the Commissioner (Appeals) placing reliance upon the statement of an employee of the respondent to the effect that the only factory in Mahad area, manufacturing printed laminated film rolls was that of the respondent No.1. Further the statement of the respondent No.3 and his employee were ignored by the Tribunal merely on the ground that their statement in the absence of corroboration by any independent evidence cannot be accepted. There is no analysis of why the orders of the lower authorities holding the "Sikandar Gutka" printed laminated flexible film rolls were liable for confiscation and that respondent No.1 is liable to pay excise duty of Rs.2.57 lakhs is bad in law - restore the matter to the file of the Tribunal for fresh consideration - appeal in favour of Revenue.
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2012 (12) TMI 585
Manufacture - immovability - assembly botorized blinds - stay - held that:- the fabric is fixed to the Aluminum tubes in the factory and besides this, in the case of motorized blinds, the motor is also fixed in these tubes at this stage. Therefore, the blinds which are chargeable to duty under Tariff sub-heading 39252000, 630300 and 70199000 came into existence in the factory premises and these blinds are installed at site. Prima facie, we are also of the view that since these blinds can be shifted, though in dismantled condition, the same cannot be said to be part of immovable property.
Though the appellant plead that during the period of dispute they were registered with the central excise authority for payment of service tax, earlier under Heading "installation services" and subsequently under "work contract services", it is not known as to whether their activity of assembly of roller/vertical blinds had been disclosed by them from the central excise authorities.
In any case, the question of limitation being a mixed question of law and facts can be examined only at the time of final hearing. Thus this is not a case of granting un-conditional waiver from the provisions of Section 35F and as such, the amount of Rs.15 Lakh paid by the appellant, during investigation, is not sufficient for safeguarding the interests of revenue. Though the appellant pleaded that they have paid the service tax of Rs.14 Lakhs, this service tax is obviously on the service component. The appellant company is, therefore, directed to deposit an amount of Rs.7 lakhs within a period of 8 weeks from the date of this order on deposit of this amount the requirement of pre-deposit of balance amount of duty demand, interest thereon and penalty and the requirement of pre-deposit of penalty by General Manager of the Appellant company shall stand waived.
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2012 (12) TMI 584
DTA clearance by 100% EOU - Whether assessee would be eligible for concessional rate of duty under notification no.23/03-CE in respect of the DTA sales for which there was no permission from the Development Commissioner - DTA sales made by assessee were in excess of the permitted DTA sales upto 31.3.2008 - On the payment of duty at the concessional rate under Notification No.23/03-CE – Further, the assessee made DTA clearances from 1.4.08 to 31.09.2008, without the permission from the Development Commissioner at concessional rate of duty - Revenue contended that, DTA sales made in excess of the permitted value and without approval were not eligible for concessional rate –
Held that:- For the period 2007 -2008, the DTA clearances made by the appellant were in excess of the permitted clearances by an amount and the same cannot be said to be in accordance with the provisions of para 6.8 of the Foreign Trade Policy and hence, would not be eligible for concessional rate of duty
The period 1.4.2008 to 30.09.2008, the assessee not produced any letter from the Development Commissioner permitting the DTA clearances for this period. In absence of the Development's letter, it cannot be said that during this period the appellant had achieved positive NFE or that DTA clearances were within 50% of the FOB value of the exports. In view of this, we are of the prima facie view that for this period also, the appellant would not be eligible for concessional rate of duty under Notification No.23/03-CE. In favour of revenue
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2012 (12) TMI 583
Non obtaining Central Excise registration - whether the fabrication of miter bends, reducers of iron & steel from the duty paid pipes would amount to manufacture? - Held that:- Appellant had been awarded a contract of water supply project of supply of water to Amerli district consisting the work of fabrication, supply, laying and jointing water transmission main from Botad in Bhavnagar district in Chavda in Amreli district on turn key basis with all civil, mechanical and instrumentation work by Government of Gujarat vide letter dated 24.09.99 - for execution of such project, appellant was given a site wherein appellant procured duty paid pipes and used the same for execution of pipe line project and the said miter bends, reducers of iron & steel were fabricated from duty paid pipes at their work shop situated at the site at Botad.
Demand on the appellant on these miter bends and reducers confirmed only on the ground that it was done so at their work shop and removed from work shop to the site for further use in the laying of pipe line for water project but this stand of the lower authorities seems to be incorrect, as the address as well as the show cause notice specifically talks about the reducers and the bends being fabricated at their site at Botad. Thus the fabrication of these items at site for the use at site is not liable for duty as has been held in the case of DODSAL PVT. LTD. Versus COMMISSIONER OF CENTRAL EXCISE, BANGALORE [2005 (10) TMI 118 - CESTAT, MUMBAI] - in favour of the appellant.
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