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Central Excise - Case Laws
Showing 121 to 140 of 260 Records
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2012 (12) TMI 552
Refund – appellants made export of Readymade Garments and filed a refund claim under the provisions of Rule 5 of Cenvat Credit Rules, 2002 read with Notification No. 54/2001-CE - Revenue submitted that Notification No.54/2001 is issued under provisions of Section 3 of the Central Excise Act and fixing tariff value in respect of readymade garments @ 60% of the retail sale price. As the appellant had not fixed any retail sale price, therefore, taking into consideration the price as per market value declared in the shipping bill is taken into consideration as maximum retail price (MRP), refund rejected – Held that:- There is no requirement of fixing the RSP on the goods for export - as the readymade garment has not been notified under Section 4A of the Central Excise Act, there is no requirement for fixing the RSP on the readymade garments which were exported therefore, provisions of Notification No.20/2001-CE are not applicable - rejecting a part of the refund claim by taking into consideration the provisions of Notification No. 20/2001-CE, is not sustainable
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2012 (12) TMI 551
Waiver of pre-deposit – appellant-company, registered as input service distributor, was distributing input services to various manufacturing units of theirs during the material period - they were also engaging themselves in a trading activity - Held that:- It is not the case of the department that any duty or tax was payable on the trading activity - entire credit was utilized for payment of duty of excise on the dutiable final products - manufacturing units were lawfully utilizing the entire credit for payment of duty on the dutiable final products. Trading activity was not one of the taxable services under Section 65 of the Finance Act 1994 and, therefore, there was no question of payment of service tax on that activity by the manufacturing units of the company - manufacturing units could not have been expected to maintain separate accounts. The show-cause notices appear to disclose self-contradictory stand of the revenue with reference to the fact of this case - appellant also seems to have a good case on limitation against the impugned demands - in favor of assessee
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2012 (12) TMI 550
Eligibility of credit taken on the capital goods/input services used in laying down railway line for about 10 Kms. from the factory to the nearest railway station and in laying the pipeline from the factory to nearby dam – Held that:- Credit accumulated can be utilized only when they started manufacturing final products and clear them - They could not utilize the credit so far and that it will take time before they can utilize the credit accumulated and also undertakes not to utilize the credit till the Appeal decided – pre-deposit waived
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2012 (12) TMI 549
Waiver of pre-deposit - manufacture of motor vehicles and motor vehicles parts – alleged that certain quantity of motor vehicles which were cleared to the depots and were subsequently transferred to other depots and cleared on the higher value – Held that:- Applicant produced data regarding such goods and submitted that in majority of cases applicants have sold the goods at lower value on which the duty has been paid at the time of clearance from the factory - in view of the definition 'place of removal' and in view of the provisions of Rule 7 of the Central Excise Valuation (Determination of Price of Excisable Goods Rules, 2000 - applicants have made out a strong case for total waiver of pre-deposit - Stay petitions allowed
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2012 (12) TMI 548
Provisional assessment - whether the respondents are liable to pay interest on finalization of the assessment if the differential duty has been paid before the finalization of the assessment – Held that:- Assessee is not liable to pay interest on the differential duty paid by them before the finalization of the provisional assessment
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2012 (12) TMI 547
Defaulted in payment of duty – alleged that there is a violation of Rule 8 (3A) of Central Excise Rules inasmuch as they are strictly prohibited from utilizing CENVAT credit during the default period – Held that:- Directing the appellant to pay the demanded amount in cash and allowing credit of the said amount (no such order has also been passed by the authorities below) would amount to double payment of duty. However there is clear violation of provisions of Rule 8(3A) of Central Excise Rules - appellant directed to deposit
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2012 (12) TMI 546
Quantification of demand - assessee is disputing the computation of the demand – Held that:- Full value of machinery items which are traded, is taken into consideration whereas as per the provisions of Rule 6 of the Cenvat Credit Rules, the value in case of trading shall be different between the sale price of the cost of goods sold or 10% of the cost of goods, whichever is more - demand is not sustainable - amount already deposited is sufficient for hearing of the appeal. The pre-deposit of the remaining amount of duty, interest and penalty is waived. Stay petition allowed.
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2012 (12) TMI 545
Waiver of pre-deposit – alleged that the applicants were taking non refundable amount from the customers as security deposit in respect of the reusable containers used in the manufacture of bottled water and Revenue wants to add this amount to the assessable value to the MRP - applicants submitted that the cost of reusable containers has been amortized and included in the MRP – Held that:- Applicants submitted the documents on 28.11.2011 such as copies of certificate of the Chartered Accountant dated 20.3.2003, Expenses Summary Statement as per Trial Balance as on 31.3.2000, copy of worksheet of landed cost of packing materials, copies of purchase invoices of packing materials etc. In spite of submitting these documents, the same were not taken into consideration while passing the impugned order - matter is remanded to the adjudicating authority
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2012 (12) TMI 544
Denial of cenvat credit - CENVAT credit availed in respect of the structural items used for the fabrication of sugar silos and weighbridge - invoices are seen mentioned in the Chief Engineer's statement which indicates that the HR coils covered by the invoices were used in the fabrication of sugar silos - same set of invoices and the same structural items are seen stated in the Chief Engineer's statement which also indicates the end-use as sugar silos – Held that:- Chief Engineer's statement specifies the structural items and also states that these were used in the fabrication of weighbridge. There is no evidence to show that the weighbridge fabricated out of the structural items covered by the above three invoices is located within the factory premises of the respondent - order is sustained to the limited extent of grant of CENVAT credit of Rs.78,185/- which was availed by the respondent on the following invoices viz. No.201, 209 and 210 dt.08/09/2006, No.2089 and 2378 dt.19/02/2007 and No.2113 dt.20/02/2007. Any further CENVAT Credit allowed by the Commissioner (Appeals) shall stand denied to the respondent - credit so quantified by the original authority shall be recovered from the respondent without interest or penalty.
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2012 (12) TMI 543
Remission of Duty – clearance of excisable goods from the factory of a Hundred Percent EOU. - calculation of duty - held that:- The provision under Rule 21 of Central Excise Rules is for goods manufactured in a factory and goods have been lost or destroyed by natural causes or unavoidable accident before removal from factory. This provision is clearly not applicable. Sections 13 and 23 of Customs Act are applicable to goods imported into the country and which are not yet cleared out of the customs area. These provisions are not clearly applicable. The argument that these goods are to be treated as imported goods is being raised apparently for the reason that duty at rate prescribed in Customs Tariff is being demanded. This is not the correct position. Duty being demanded is excise duty.
Duty payable is calculated at rates prescribed in Customs Tariff.
Imposition of Penalty - held that:- There are mitigating factors in favour of the appellant. Revenue has not been able to prove any mala fide intentions of the appellant - penalty imposed on the appellants is set aside - Thus appeal is allowed partially.
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2012 (12) TMI 535
Restoration of stay petition - waiver of dues dismissed for non-prosecution - Held that:- Appellant produced a copy of the letter dated 4.08.2012, which was sent through Speed Post and as per receipt of the Speed Post, that letter was submitted to the Postal Department on 4.08.2012 at 2.28 p.m. - notice for hearing was issued on 18.06.2012 fixing the application for waiver of dues on 06.08.2012 - The applicant receive the notice, however, the request for adjournment was only made through letter dated 04.08.2012 - applicants are interested only in delay the proceedings - matters listed before the Bench are also put up on the Website of the CESTAT.
As the applicant was interested in undue delay in disposing of the application for waiver of dues, the Restoration application of Stay petition is allowed subject to deposit of cost of Rs.20,000/- to be deposited with the jurisdictional Commissioner within a period of two weeks. The Stay application is adjourned to 4.12.2012.
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2012 (12) TMI 534
Confiscation of Drums of packing material - drums were found having not been entered in their RG 23A Part I records - Imposition of Penalty - Held that:- Statements of appellant had clarified that these drums were old and used drums and were purchased under an invoice which was not cenvatable. As such the question of making entries of the same in RG 23 A Part I does not arise. The appellate authority have not found that appellants have taken the credit in respect of seized drums.
The Revenue, for confiscation of drums in question should have shown that they have taken the credit in respect of seized drums. There is no such finding by the authorities below - no reason to uphold the confiscation of drums or to impose penalty on the appellant - in favour of assessee.
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2012 (12) TMI 533
Power of Commissioner to remand the matter to the adjudicating authority for fresh adjudication - setting aside of Demand of Duty, Interest and Penalty - Held that:- If the order in original is passed without giving opportunity of being heard to the assessee or without permitting him to produce evidence in support of his case then only order with the Commissioner (Appeals) would be able to pass him to set aside the impugned order on the ground of failure of justice. This would create an anomaly with prejudice to the Revenue as it would bring an end to the litigation without adjudicating on the demand raised by the show cause notice. Therefore, just and proper order in such a case would be nothing but an order of remand to adjudicate the matter denovo after giving due hearing to the assessee - it is apparent that Commisioner(A) have power to remand the matter back to original adjudicating authority even after amendment of Sec 35A(3).
As decided in COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD-I Versus MEDICO LABS [2004 (9) TMI 108 - HIGH COURT OF GUJARAT AT AHMEDABAD] that Commissioner (Appeals) continues to have power of remand even after the amendment of Section 35A(3) of the Central Excise Act, 1944 by Finance Act, 2001 w.e.f. 11.5.2001 - no merit in appeal filed by the department.
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2012 (12) TMI 532
Wrong availment of Cenvat Credit - Imposition of Penalty and Interest under Rule 15 of CCR 2004 rws 11AC of Central Excise Act, 1944 - Held that:- On reading of Rule 15(2) it is evident that this rule is applicable only in respect of Cenvat credit wrongly availed by the assessee in relation to “Inputs” or “Capital Goods”. This rule does not apply to wrong availment of Cenvat credit in relation to “Input Service”.
Rule 12(4) would show that it is applicable in the case in which the assessee is a service provider. However, in the instant case appellant is a manufacturer and not service provider. Thus, in our view Rule 15(4) is also not attracted. At best, the appellant can be penalised under Rule 15(3) to the extent of Rs. 2,000/- - thus impugned order is set aside and amount of penalty is modified to Rs. 2,000/- in accordance with Rule 15(3) of CRR, 2004.
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2012 (12) TMI 531
Rectification of Mistake - Condonation of delay of 124 days in filing ROM Application – Held that:- Foolowing the decision taken in COLLECTOR OF C.E., CHANDIGARH Versus DOABA CO-OPERATIVE SUGAR MILLS [1988 (8) TMI 103 - SUPREME COURT OF INDIA] there is no scope for condonation of delay in filing of ROM application under Section 35C(2) when there is no provision for such condonation and the Tribunal being a creation of statute, cannot travel beyond the confines of the statute. The provisions of Section 5 of the Limitation Act, 1963 read with Section 151 CPC are not applicable for condonation of delay in filing of appeals or rectification application under the provisions of Central Excise Act, 1944.The delay in filing of ROM application, therefore, cannot be condoned and the application has to be rejected as time barred.
Interest on Refund of Pre deposit - Held that:- As from ROM it is seen that assessee seek interest @ 12% p.a. from the date of pre-deposit i.e. 8-8-2008 till the date of refund of pre-deposit on 18-10-2011. But there is no provision in Central Excise Act, 1944 for interest on pre-deposit from the date of pre-deposit. Section 35FF permits interest only from the date of expiry of three months from the date of communication of the Appellant order to the Department till the date of refund of pre-deposit. A debatable point of law can not be a “mistake apparent from the record” as held in case of CCE, Calcutta v. ASCU Ltd. (2002 (12) TMI 87 - SUPREME COURT OF INDIA) - a mistake apparent from record’ is that which is an obvious and patent mistake and is not something which has to be established by long drawn process of reasoning on which there may be conceivably two opinions - ROM application and condonation of delay in filing of ROM application dismissed.
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2012 (12) TMI 509
Stay of demand - ex parte order - violation of principles of natural justice - Interest on differential duty on finalization of provisional assessment - held that:- It is, therefore, apparent that the Commissioner (Appeals) has proceeded to disregard the request of the petitioner for personal hearing despite the fact that the counsel has clearly sought time in view of the inability to appear on that particular date for this case on the ground that they are engaged before this Court. The petitioner also states that they have given intimation seeking adjournment on the above stated plea. There is nothing on record to show that the petitioner has been seeking adjournments frequently to avoid hearing. Unless and until it is shown that the conduct of the party is to avoid appearance without just or reasonable cause, there is no justification to decline grant of further time. On this score, the order passed in the stay petition without giving an opportunity of hearing to the petitioner appears to be arbitrary and there has been a violation of the principles of natural justice.
The impugned order is passed without giving adequate opportunity to the petitioner. - Matter remitted back for fresh decision.
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2012 (12) TMI 508
Waiver of pre-deposit – denial of the benefit of Notification No.10/97-CE dated 1/3/97 to the assessee in respect of certain goods which were supplied by them to certain public-funded research institutions – nature of the goods cleared by the appellant to such institutions – Held that:- Goods so cleared include boring machine, rotary table, base plates, cradle assembly and planetary gear box etc. - these items were used by customers for research-related purposes and therefore the benefit of the above Notification cannot be denied to the assessee - on the strength of the certificates of public-funded research institutions - waiver of pre-deposit allowed
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2012 (12) TMI 507
Whether the credit on duty paid on inputs "end shields" and "stator housings" is available to the assessee as these inputs were exclusively used in the manufacture of exempted final products particularly when the assessee has paid 8%/10% of the price of the exempted final products to the department – Held that:- Submission of the assessee that the generators of 1000 KV and 1250 KV have been cleared by them reversing the credit equal to the amount of 8%/10% of price of exempted goods during the relevant period. It is their contention that the said reversal is in excess of total CENVAT Credit taken by them on all inputs used in the manufacture of exempted goods. To prove this fact, they have submitted a certificate from the Cost Accountant - Commissioner has not given any finding on this submission of the assessee – matter remanded back to the Commissioner
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2012 (12) TMI 506
Waiver of pre-deposit - denial of cenvat credit – Held that:- applicant purchased certain quantity of duty paid grey fabrics and sent to M/s. Natraj Processors for processing. M/s. Natraj Processors availed credit in respect of the duty paid on grey fabrics and subsequently, without undertaking any processing, cleared the grey fabrics to the applicant under their invoices showing payment of duty - applicant availed credit on the strength of invoices issued by M/s. Natraj Processors - at the time of clearance of grey fabrics M/s. Natraj Processors, no duty has been paid or reversed - which was paid subsequently after three years - supplier of goods as well as the applicant unit have common Directors, hence, it cannot be said that the applicant unit was not aware of the fact that the supplier unit has not paid the duty - No financial hardship has been pleaded – assessee directed to make pre-deposit
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2012 (12) TMI 505
Waiver of pre-deposit - alleged that appellant is engaged in the manufacture "Green House" classifiable under Chapter Heading 9406 of Central Excise Tariff Act, 1985, therefore, they are liable to pay excise duty – contention of the appellant is that the applicants are only supplying the material namely galvanized pipes, shade net, polythene sheets, G.I. wires, nylon ropes, nuts and bolts used for erection of these pipes and fixing of polythene sheets and shade nets to formers (sic), who in turn themselves make the 'green house' - Held that:- In the case of Srihari Greenhouse P. Ltd. (2011 (12) TMI 353 - CESTAT, MUMBAI ) unconditional waiver of pre-deposit was granted to the applicant - requirement of pre-deposit waived
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