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Central Excise - Case Laws
Showing 141 to 160 of 260 Records
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2012 (12) TMI 504
Penalty under Section 11AC of the Central Excise Act assessee availed CENVAT credit facility on the inputs received and, thereafter, these inputs were sent to the job-worker by following the procedure under Rule 4(5)(a) of the CENVAT Credit Rules,2004 - appellant failed to produce any evidence to show that they received the inputs after processing from the job-worker Held that:- Rule 4(5)(a) of the CENVAT Credit Rules,2004 is self-explanatory, wherein the assessee is entitled to take credit on receipt of the inputs. Therefore, the appellant has not taken the credit with an intention to evade duty - appellant has already paid the duty along with interest, therefore, there is no contravention of the Rules or provisions of the Act with intention to evade payment of duty as required under Section 11AC of the Central Excise Act, 1944 for imposing penalty. Therefore, penalty imposed under Section 11AC of the Central Excise Act, 1944 is dropped but duty and interest already paid are confirmed
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2012 (12) TMI 503
Waiver of pre-deposit manufacture or not - appellant is engaged in the marketing of hydrogen gas cylinders - appellant receives 99.9% pure hydrogen gas from SIEL through pipeline at a pressure of 1000 to 1200 mmwc. This gas is filled in returnable gas cylinders with identification marking of the appellant and sold to various consumers - Department was of the view that filling and marketing of hydrogen gas cylinders with label amounted to manufacture in view of Chapter Note 9 of Chapter 28 of the Central Excises and Salt Act as applicable at that time Held that:- It cannot be said that filling of liquid ammonia from tanker into smaller cylinders does not amount to repacking of gas from bulk packing - appellant directed to deposit
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2012 (12) TMI 502
Power to condone delay - declaration under Rule 57G(1) indicated use of defective angles falling under 7216.90 as input but did not indicate mis-rolls falling under heading 7216.10 - defect in the declaration was sought to be rectified by declaration filed on 15-10-1996, four months after availing credit, on goods falling under heading 7216.10 Held that:- Whether mis-rolls would be classifiable under 7216.10 or 7216.90 itself was in doubt - Assistant Commissioner had powers to condone the delay as per provisions of Rule 57G(5) - Deputy Commissioner has not recorded any reason for not exercising this discretion in this case. If a public authority is given a discretion to do a thing under a Rule and if chooses not to do so he is bound to record reasons for not exercising the discretion - Since this has not been done order of the adjudicating authority is not sustainable
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2012 (12) TMI 501
Transaction value - manufacture of aerated water and edible syrup alleged that appellant was charging different rates for clearance of the edible syrup at their factory gate from the three distributors and HCR - rate charged from HCR was 30% less than the rate charged from the other three distributors - whether HCR can be termed as a different class of buyer as compared to the three distributors of the appellant company Held that:- Assessee can pay excise duty at lesser transaction price at which the goods were sold to one category of buyer provided he is able to show cogent reason as to how the buyer fall within different class of buyer - different price based on various rational commercial considerations like regional different taxes, quantity off-take, presence of competitors, future demand etc. - appellant not only averred that HCR was treated as different class of buyer but this fact is established from the record In favor of assessee
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2012 (12) TMI 500
Condonation of Delay of one and a half year - Held that:- The cause shown for delay that the Committee of Commissioners took a mistaken view of the law that the judgment of Honble Supreme Court dismissing the civil appeal did lay down the law and confirmed the legal position settled by the Tribunal in the case of CCE, Hyderabad v. Priyanka Refineries Ltd. (2009 (5) TMI 419 - CESTAT, BANGALORE) is not sufficient to accept as Committee of Commissioners has accepted the impugned orders of Appellate Commissioner after considering all the aspects of the matter - Application for condonation of delay was dismissed as time-barred - against the appellant.
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2012 (12) TMI 471
Assessable value - Place of removal company owned company outlets (hereinafter referred as COCOs) - Oil companies were receiving Petroleum products from various refineries located at different places in India, under bond without payment of duty at their "terminal points" and storing at the Terminal Points without payment of duty. They were clearing the products on payment of duty from the said place. Held that:- There is no basis to consider the COCO outlets as the "place of removal". It is not the case of the department that the petroleum products were received in COCO outlets without payment of duty and sold from the said COCO outlets only on payment of duty. Therefore, there is no justification to treat the COCO outlets as the "place of removal" - "place of removal" is the factory gate and the sale has taken place at the factory gate and the delivery charges are in the nature of transportation charges for transporting the petroleum products through pipeline.
The sale prices from the terminal points to the dealers were based on APM prior to 01.04.2002 (that is as determined by a different authority and adopted by the oil marketing companies) and from 01.04.2002 the same have been determined by the oil marketing companies themselves. For valuation purposes, it is immaterial as to whether the transaction value was based on APM or self-determined by OCM. Since in respect of transfers to COCO outlets, the price applicable to dealers at the "place of removal" (that is terminal points) has been adopted, the same is legal and proper.
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2012 (12) TMI 470
Extended period of limitation Held that:- There is no challenge by the department to the finding of the lower appellate authority on the question of limitation. As such, the Tribunal cannot go into the question that has not been raised by the department. Besides, when the relief has been given on two grounds i.e., both on merits and on limitation, and the department has chosen not to challenge the same on the count of limitation, it would be an infructuous exercise to go into the appeal on the ground of merit because the respondents would get the benefit in any case on the ground of limitation since the entire demand is for the extended period.
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2012 (12) TMI 469
Period of limitation - period of dispute in is from 19-12-2006 to 1-5-2008 - date of show cause notice is 26-8-2009 Held that:- Show cause notice would be within time limit only if extended period under proviso to Section 11A(1) is available for which it has to be proved that non reversal of proportionate Cenvat credit was due to wilful mis-declaration, fraud, suppression of facts, etc. on the part of the Appellant. But these allegations can not be made against the appellant - When the Appellant were declaring clearance of Zinc dross/ash without payment of duty as exempted goods in the ER-I Return, they can not be accused of suppressing the relevant information, more so, when there are a series of instructions of the Board directing field offices to scrutinize the ER-I Returns carefully - longer limitation period under provisions of Section 11A(1) is not available to the Department and show cause notice dated 26-8-2009 is time barred. For the same reason, the penalty under Section 11AC is also not imposable - imposition of penalty under Section 11AC is, therefore, not sustainable.
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2012 (12) TMI 468
Benefit of Notification No. 39/2001-C.E. alleged that appellant had invested substantially and had put up the entire project which would indicate that the unit has been set up only after 31-12-2005, thereby the entitlement of Notification No. 39/2001 is correctly denied Held that:- Appellant unit was set up after the publication of notification and had started commercial production prior to 31-12-2005. Prima facie, the subsequent investment made by the appellant in the plant in the form of backward integration cannot be held against them for denying the benefit of said notification - waiver of pre-deposit allowed
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2012 (12) TMI 467
Demand of duty - manufacture of V.P. Sugar, molasses, rectified spirit and de-natured spirit - In the process of manufacture, bagasse is produced as a bye-product - appellant was availing Cenvat credit alleged that appellant cleared bagasse without payment of duty and did not declare the sale in his ER-I Returns Held that:- Department is required to establish that some Cenvat credit was availed by the appellant in respect of inputs which were used for the production of bagasse at the first stage of manufacture i.e. crushing of sugar cane to extract juice - department has failed to establish that the appellant used cenvatable inputs for production of bagasse. Once it is concluded that the department has failed to establish that the appellant used cenvatable inputs for manufacture of bagasse, Rule 6(2) and Rule 6(3) (i) & (ii) of Cenvat Credit Rules, 2004 are not attracted - duty demand, interest and penalty set aside
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2012 (12) TMI 466
Waiver of pre-deposit of the duty demand and penalty assessee contested against violation of principle of natural justice Held that:- Non supply of documents have prevented the appellant to properly defend the show cause notice and case decided even after stay order by High Court - matter remanded back to Com.(Adjudication) who shall also give an opportunity of being heard to the appellant to cross-examine the relevant witnesses.
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2012 (12) TMI 465
Refund 100% EOU - manufacture of excisable goods falling under heading 5802 for export - assessee procuring indigenously manufactured goods free of excise duty under exemption Notification No. 22/2003-C.E. and its predecessor notifications - appellant procured free of basic excise duty and AED under Notification - refund claims were filed on the ground that the Notification No. 22/2003-C.E. and its predecessor Notifications also exempted the AED levied on HSD under Section 133 of the Finance Act, 1999 Held that:- There is no scope to cover AED leviable on HSD under Section 133 of the Finance Act, 1999 under Notification No. 22/2003-C.E. and its predecessor notifications, when the AED leviable under Finance Act, 1999 is not mentioned in these notifications - refund claims rejected
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2012 (12) TMI 464
Duty demand classification of sugar - rate of duty applicable depended upon the nature of clearance - whether for free sale or as levy sugar at price fixed by the Government - Government clarified that differential duty would be reimbursed to the Sugar Mills which would indicate that the Government intended to treat these sugar sales as free sale sugar, the appellant received the differential duty only in August, 2001 and before that, i.e. in June, 2001, they had paid the differential duty Held that:- Short-payment of duty in this case, which was made goods by the appellant on their own on 7-6-2001, much before the issue of show cause notice on 21-9-2001, can not be attributed to fraud, wilfil mis-statement, mis-declaration, suppression of facts or contravention of any provisions of Central Excise Act, 1944 or of the rules made thereunder with intent to evade the payment of duty duty upheld - imposition of penalty on the appellant under Section 11AC is not sustainable.
Interest on duty under Section 11AB Held that:- As per the provisions of Section 11AB, interest under this Section was chargeable only in those cases where short-payment, non-payment or erroneous refund of duty were due to fraud, wilful mis-statement, mis-declaration, suppression of facts, etc. - fraud, wilful mis-statement, mis-declaration, suppression of facts, etc. are absent, interest on differential duty under Section 11AB would not be chargeable
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2012 (12) TMI 463
Demand of excise duty on cement clinkers produced - captively consumed in the same factory for production of cement which was exempted from duty - according to the appellants excise duty is payable on removal of goods from a factory the demands are not maintainable Held that:- As can be seen from facts recorded above, the disappearance of Explanation-II positioned below sub-rule (3) of the Rule 4 is a very obvious conclusion for private publishers of the amended Rules and persons carrying out amendments on the web site of C.B.E. & C. It is most probably a matter of surprise to the policy makers because there was no policy change announced to the effect that excise duty need not be paid for captive consumption from 25-2-2003. It can also be a source of worry to them for the future. It may be a matter of embarrassment to the person who drafted the amendment. It appears to be a matter of delight for the Counsels who argue that duty liability can no longer arise in the case of captive consumption of excisable goods. It is a matter of labour for judicial forums to decide whether the explanation has gone or not.
Explanation-II explicitly stated to be for the purpose of Rule 4 put placed after sub-rule (3) but before the non obstante clause 4 did not get omitted by amendments made by Notification No. 24/03-C.E. (N.T.). The fact that Explanation-I if retained is redundant is not a sufficient reason to conclude that both explanations were dropped.
There cannot be any argument that the appellants were under the bona fide impression that duty liability on goods captively consumed has been done away with by issue of Notification No. 24/03-C.E. (N.T.), because no such argument was taken any time in proceedings before lower authorities and was taken for the first time before the Apex Court. There was no policy change announced to that effect. The appellants cannot take note of the wrongly constructed rules after amendment as published on web-site of C.B.E. & C. and at the same time ignore the supplementary instruction issued by C.B.E. & C.
Even in the absence of Explanation No. II in Rule 4 of Central Excise Rules duty liability will arise in this case.
Thus we are of the view that Explanation-II of Rule 4 has not been dropped by Notification No. 24/2003-C.E. (N.T.). Further even in the absence of the explanation there is a duty liability that arises when clinker is removed within the factory for manufacture of cement.
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2012 (12) TMI 462
Denial of Cenvat Credit - Held that:- Cenvat Credit on the Goods imported and sold to the assessee,if are found same, Cenvat Credit cannot be denied on the ground that Bill of Entry was not endorsed by the port authority although it was duly endorsed by the importer in favour of the appellant through appropriate entry and under cover of those bills of entry the goods moved to the factory of the appellant - in favour of Appellant.
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2012 (12) TMI 437
Cenvat credit on input LSHS - producing steam and electricity for the manufacture of fertilizer - Held that:- In COMMR. OF C. EX., VADODARA Versus GUJARAT STATE FERTILIZERS & CHEM. LTD.[2008 (7) TMI 61 - SUPREME COURT] a view has been taken that modvat credit can be taken on LSHS used in the manufacture of fertilizer exempt from duty. Although this decision was rendered in the context of availing modvat credit under the Central Excise Rules, 1944 as they existed prior to the promulgation of the Cenvat Credit Rules, 2002 the principle of law laid down is general and not specific to the Central Excise Rules, 1944. The decision rendered in Commissioner of Central Excise v. Gujarat Narmada Fertilizers Company Limited [2009 (8) TMI 15 - SUPREME COURT ] has been rendered in the context of the Cenvat Credit Rules, 2002 and is, therefore, more apposite.
There is an apparent conflict between GSFCL and Gujarat Narmada since GSFCL does lay down a general principle of law, no option but to refer the issue to a larger Bench to resolve the conflict between GSFCL and Gujarat Narmada. The conflict to be resolved is whether under the Cenvat Credit Rules, 2002 an assessee is entitled to claim cenvat credit on duty paid LSHS utilized as an input in the manufacture of fertilizer exempt from duty.
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2012 (12) TMI 436
Refund claim pre-deposit Held that:- Sum of Rs. 40 lakhs was deposited by the respondent pursuant to the direction given by the Commissioner (Appeals) under proviso to Section 35F of Central Excise Act, 1944 - This deposit was in the nature of securing the demand confirmed against the respondents vide order-in-original - Once the order-in-original and order of the Commissioner (Appeals) has been set aside by the Tribunal, the department has no option but to return the amount of pre-deposit and has no right or legal authority to create any obstruction in refunding the amount In favor of assessee
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2012 (12) TMI 435
Cenvat credit - whether the appellant who is procuring the furnace oil from M/s. Reliance Industries is entitled to Cenvat credit of Service Tax initially paid by M/s. Reliance Industries but recovered by them from the appellant Held that:- Freight and Service Tax paid by M/s. Reliance Industries is on behalf of the appellant and is reimbursable by the appellants. It is also not Revenues case that M/s. Reliance Industries has taken the Cenvat credit of the Service Tax so involved - confirmation of Service Tax against the appellant by denying them the credit is not sustainable in favor of assessee
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2012 (12) TMI 434
Eligibility for exemption under Notification No. 50/2003-C.E. area based exemption - Held that:- After field survey, the appellant was found eligible for exemption under Notification No. 50/2003-C.E. - merely because of inadvertent clerical error regarding Notification No. in the declaration filed for the purpose of exemption, the appellant cannot be denied the benefit of Notification No. 50/2003-C.E., when he otherwise is eligible for the same in favor of assessee
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2012 (12) TMI 433
Refund claim on the basis of exemption Notification No. 130/83-C.E. Held that:- During the period of dispute for claiming exemption notification, filing of classification list an its approval by the Assistant Commissioner was mandatory requirement under 173B without which exemption could not be claimed - appellant filed classification list in February, 1992 with retrospective effect, this classification list was rejected by the AC and against this order, no appeal has been filed by the appellant and thus ACs order rejecting the appellants claim for benefit of Notification No. 130/83-C.E., dated 27-4-1983, became final - refund claim on the basis of exemption Notification No. 130/83-C.E. cannot be entertained
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