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Central Excise - Case Laws
Showing 221 to 240 of 260 Records
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2012 (12) TMI 176
Demand of Duty and penalty - clandestine removal – shortage and excess stock – Submission of the appellants that they have now improved their accounting system by adopting computerized accounting and the matter under consideration occurred was just before such computerized accounting was put in place - Held that:- Large number of final products the appellants were manufacturing and the difficulty in maintaining proper accounts of such variety of goods both in packed condition and in bulk - errors are on account of errors in accounting rather than due to clandestine removal because of the fact that discrepancies have been noticed involving both excesses and shortages - this is a case of improper accounting rather than a case of clandestine removal of inputs and finished goods - appellants are required to maintain proper accounts of inputs and finished goods available with them as per Central Excise Rules - duty demanded and penalty set aside
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2012 (12) TMI 175
Refund - manufacture of various photographic chemicals - assessees were clearing empty MS. Drums/HDPE/PP/LDPE bags/PVC drums and cans, in which the raw materials were received by them without payment of duty – alleged that duty was required to be paid by them on the sold empty containers - duty was being paid by them under protest – Held that:- Empty containers of modvatable raw materials do not attract duty at the time of their sale - show cause notice having not been issued, the deposits made by the appellant cannot take the colour of the ‘duty’ so as to invite the limitation provisions - appellants were admittedly not required to pay the said duty and the refund claim does not pertain to the routine payment of duty in the ordinary course of the business where such refund claim requires scrutiny from the angle of limitation as also from unjust enrichment angle – refund allowed
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2012 (12) TMI 174
Application for modification of stay order - SSI Exempted - Extended period of limitation - Whether the brand name RIAT can be said to be owned by the appellant company – limitation – Held that:-In that order, the merits of the case and also the question of time bar, had been considered and it had been found that in respect of the same, the appellant have not been able to establish prima facie case. As discussed above, on the question as to whether the brand name RIAT can be said to be owned by the appellant company and on which the bulk of the duty demand of Rs. 59,49,884/- is based, the judgment of the Apex Court in the case of Prince Valves Industries v. CCE, Chandigarh (2006 (2) TMI 172 - SUPREME COURT OF INDIA) appears to be against the appellant.
Even the appellant’s plea that there is an assignment deed dated 17-6-2006 assigning the brand name RIAT to M/s. Riat Tools Pvt. Ltd. and, hence, for the period w.e.f. 17-6-2006 the SSI exemption cannot be denied to them also does not help them in view of the Tribunal’s judgment in the case of VEE GEE Faucets P. Ltd. v. CC, Gurgaon (2010 (3) TMI 710 - CESTAT, NEW DELHI) cited by the learned DR. The appellant’s plea with regard to limitation had also been considered in the stay order dated 21-4-2011 and had not been found acceptable in the background of the fact that they had not intimated the department that the brand name RIAT being used on their goods does not belong to them and the same is still registered in the name of M/s. Riat Machine Tools.
Miscellaneous application dismissed.
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2012 (12) TMI 173
Levy of excise duty followed by penalty and interest – Held that:- Colour of the sugar is lost with the passage of time - It is quite common when reprocessing is done some loss is bound to take place - That has been rightly appreciated by the appellate authority - preponderance of probability is in favour of the respondent to hold that the order of the Commissioner (Appeals) does not suffer from legal infirmity - Revenue’s appeal is dismissed
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2012 (12) TMI 172
Classification of the product Bio-Control Agents - under Heading No. 30029030 based upon the precedent decision or under Heading No. 38.089910 – Held that:- Appellant have placed strong reliance on the precedent decisions of the Tribunal, the Adjudicating Authority has chosen to ignore the same and have decided the issue independently, without taking note of the earlier judgments - fair process of adjudication requires the adjudicating authority to deal with each and every plea raised by an assessee and specifically the decisions, which apparently covers this issue - matter remanded to the Commissioner for de novo decision
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2012 (12) TMI 171
Penalty on broker dealing the goods liable to confiscation - appellant acted as a broker only and was not concerned with issuance of invoices without supply of goods - prior to 1-3-07, the provisions of Rule 26(2)(ii) were not available - Hon’ble High Court has held that in spite of non-applicability of Rule 26(2) penalty could be levied as the appellant in that case was concerned in selling or dealing with the goods which were liable to confiscation - Rule 25(1)(d) and Rule 26(1) were also applicable – Held that:- Said observations were made in respect of the persons concerned with the selling of the goods and issuance of the invoices - appellant neither sold the goods nor issued the invoices and has acted only as a broker on commission basis - penalty has been imposed upon on him under Rule 26 without mentioning any sub-rule - appellant is entitled to unconditional stay from the condition of pre-deposit as also from recovery
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2012 (12) TMI 158
Determined the annual production capacity - Extended Period of limitation - Assessee is manufacturer of the rerolled product of non-alloy steel - Duty of the Excise is leviable in terms of the provisions of Section 3A of the Central Excise Act, 1944 - Based on the capacity of production of their factory - the annual capacity determined by the assessee under Sub Rule 3 of Rule 3 of the Rules of 1997 was 3044.531 for F.Y 1996-97 metric ton against which the actual production of the Revenue was 6095.795 metric ton F.Y 1996-97 – Commissioner review his own order retrospectively, for the determination of the annual production capacity - SCN was issued on the basis of annual capacity of production of assessee's unit under Rules of 1997 w.e.f. 01.09.1997 will be as per actual production of the year 1996-97 and demanded differential duty for the year 1997-98 and 1998-99.
Held that:- The duty leviable for the produce of the mill in excess to the annual capacity of production determined by the formula under sub-Rule 3 of Rule 3 will be the quantity leviable for the duty. In Rule 5, even after declaring that actual production of the mill will be the annual capacity of the production shall be determined by the formula under sub-Rule 3 of Rule 3, but it has been restricted to apply for only financial year 1996-97. In view of the Rule 5 also, even actual production of previous year i.e. for the F.Y 1996-97, by application of the deeming Clause under Rule 5, that is not the basis annual capacity of production for the subsequent years. Therefore said notice was barred by the period of limitation of six months. In favour of assessee
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2012 (12) TMI 149
Classification of ‘soft serve' - Common Parlance Test - Whether classifiable under heading 21.05 (as claimed by the revenue) or under heading 04.04 or 2108.91 (as claimed by the assessee) of the Central Excise and Tariff Act, 1985 - held that:- in the absence of a statutory definition in precise terms; words, entries and items in taxing statutes must be construed in terms of their commercial or trade understanding, or according to their popular meaning. In other words they have to be constructed in the sense that the people conversant with the subject-matter of the statute, would attribute to it. Resort to rigid interpretation in terms of scientific and technical meanings should be avoided in such circumstances. This, however, is by no means an absolute rule. When the legislature has expressed a contrary intention, such as by providing a statutory definition of the particular entry, word or item in specific, scientific or technical terms, then, interpretation ought to be in accordance with the scientific and technical meaning and not according to common parlance understanding.
Tribunal erred in law in classifying ‘soft-serve’ under tariff sub-heading 2108.91, as “Edible preparations not elsewhere specified or included”, “not bearing a brand name”. We hold that ‘soft serve’ marketed by the assessee, during the relevant period, is to be classified under tariff sub-heading 2105.00 as “ice-cream”.
Regarding alternate plea - assessee contended that in the event ‘soft serve’ was classifiable under heading 21.05, the assessee was entitled to the benefit under Notification No. 16/2003-CE (NT) dated 12th March 2003. - held that:- We are afraid we are unable to take this argument into account since such a plea was not urged before the Tribunal in the first place. Given that this is a statutory appeal under Section 35L of the Act, it is not open to either party, at this stage of the appeal, to raise a new ground which was never argued before the Tribunal.
Even if we assume that this ground had been urged before the Tribunal, in our view, learned counsel’s reliance on this notification is misplaced. Upon a reading of the notification it is clear that the exemption in the notification is granted for the whole of excise duty which was payable on such softy ice cream and non alcoholic beverages dispensed through vending machines, but was not being levied during the relevant period, which is not the case here. In the present case, as aforenoted, three show cause notices had been issued to the assessee alleging that ‘soft serve’ was classifiable under heading 21.05 and attracted duty @ 16%. The show cause notices issued by the revenue also indicated that the assessee was liable to pay additional duty under Section 11A of the Act. - This clearly shows that the excise duty was payable by the assessee and was being levied by the revenue. - Decided against the assessee.
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2012 (12) TMI 148
Cenvat credit - waiver of pre deposit - duty paid inputs like steel plates for fabrication of various machinery, tanks etc. - held that:- there is no dispute as regards the receipt of the plates and consumption thereof for fabrication of the storage tanks in the refinery. It is also seen that the said show cause notice is only on the ground that the appellant could not have availed the cenvat credit of the inputs which were received prior to 10.09.04.
This adjudication order has attained the finality as department has not filed any appeal. Extending the same logic, prima-facie we find that there cannot be any dispute regarding the availment of cenvat credit by the appellant in this case as we have already recorded that there is no dispute as to receipt of the plates and the duty paid nature of the same and consumption thereof for the fabrication of storage tanks in the appellant's factory premises. - prima facie case in favor of assessee - stay granted.
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2012 (12) TMI 147
Cenvat credit - Import of capital goods availing the benefit of Notification No. 25/2002-Cus., by paying concessional rate of duty – importer has two units – capital goods transferred from DTA unit to 100% EOU as such – Held that:- DTA unit having taken the credit on the capital goods, are required to reverse the credit in terms of Rule 3 (5) of CENVAT Credit Rules - E.O. unit though belonging to the same legal entity operates under different provisions on tenability and benefits. Whether the credit taken by them on capital goods could be utilised by them depends upon whether there are any domestic clearances by them are payment of duty. Therefore, the plea of revenue neutrality cannot be accepted unconditionally - DTA unit directed to reverse the CENVAT credit taken by them on the capital goods removed as such or to pay equivalent amount in cash
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2012 (12) TMI 146
Exemption to pipes needed for delivery of water from its sources to the plant and from there to the storage facility. – PSCC Pipes manufactured by the appellant were laid to make pipeline from Junia to Bhinay to carry untreated water. - Notification No. 6/2002-C.E., dated 1-3-02 as amended vide Notification No. 47/2002-C.E., dated 6-9-2003 - Held that:- the Notification has to be interpreted to cover the pipes which were needed to deliver water not only up to the first storage point but also to the second and subsequent storage points such as elevated storage reservoir where water was further treated for chlorinisation. If the intention of the Govt. was to restrict the exemption for pipes upto first storage point, the Notification should have been accordingly worded from the beginning.
Assessee can avail the benefit of Notification as the notification is not worded about the various storage points properly - in favour of assessee.
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2012 (12) TMI 145
CENVAT Credit - Service Tax paid by him as a recipient of services from foreign national for the purpose of obtaining the orders from the foreign countries – denial on the ground that the appellant is not eligible for availing credit under the provision of Rule 2(l) of CENVAT Credit Rules, 2004 - period involved in this case is prior to 31.03.2008, on which day the definition under Rule 2(l) of CENVAT Credit Rules, 2004 has undergone change - commission paid by the appellant is for procuring the orders for goods manufactured by him - Service Tax liability on the appellants made under Section 66A, is a liability which should have been discharged by commission receiver, in which case, the appellant would have been eligible to avail CENVAT Credit of Service Tax so paid - activity of payment of commission during the relevant period is in respect of the business activity of appellant – cenvat credit allowed – in favor of assessee
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2012 (12) TMI 144
Adjustment of excess payment of duty against short-payment of duty upon finalisation of provisional assessments - Held that:- Adjustment of the excess payment of duty against the short-payment of duty for the period covered by the same return is what is impliedly permitted - Such claim shall be considered on monthly basis. In other words, the amount of duty paid in excess for a month covered by a return may be adjusted against the amount of duty short-paid (if any) for the same month.
For such adjustment of duty burden of duty has to be borne by the assessee as per Doctrine Of Unjust Enrichment and not the Consumer. - Matter remanded back for fresh decision.
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2012 (12) TMI 143
Waiver of pre-deposit – cenvat credit - revenue submitted that credit of Education Cess is permissible only for two times whereas the applicants in the present case have availed the benefit of credit at third time. - Held that:- Applicability of Rule 3(7) of the Cenvat Credit Rules and in the present case major portion of the dispute is after the amendment of Cenvat Credit Rules i.e. 7-9-2009 - Education Cess and Secondary Education Cess as referred to in Part B of the proviso to the Cenvat Credit Rules, prima facie, credit is available to the applicants - Stay petition is allowed.
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2012 (12) TMI 142
CENVAT credit - Denial of credit in respect of the capital goods - Depreciation claimed under the Income Tax Act - Held That:- As Documents were not available to the original authority and that authority was therefore handicapped in taking a decision on the dispute. Appellate Authority did not properly examine the documents produced by the assessee - The matter was remanded back to the original authority.
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2012 (12) TMI 141
Cenvat credit - CENVAT credit in respect of Service Tax paid on services namely clearing charges, commission on export sales, material handling charges, terminal handling charges, Bank Commission charges and Aviation charges have been availed by the appellant as input service – CENVAT credit has been denied to the appellant on the ground that the above stated services do not qualify within the definition of input services as per Rule 2(I) of CENVAT Credit Rules, 2004 - Held that:- Assessee is entitled to avail input service credit on the services availed by them in the course of their business of manufacturing - appellant has availed all the above services in the course of business of manufacturing - appellant is entitled to avail input service credit on the services
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2012 (12) TMI 140
Waiver of pre-deposit - 100% Export Oriented Unit - demand of SAD on DTA clearances – manufacturers of fatty acids, alcohol and soap noodles - stock transfer to their Sion unit – Held that:- There is merely stock transfer to their Sion unit which finally has paid ST/VAT on their clearance - applicant has paid VAT/ST on the clearance made to other than their Sion unit. Therefore, the applicant has correctly availed the exemption under Notification 23/03 which provides exemption to DTA clearance on the goods produced by EOU and as per condition on the goods which are cleared in DTA are not exempt by state government from payment of ST/VAT - pre-deposit waived
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2012 (12) TMI 105
Cenvat Credit on GTA Services - Whether factory gate at the port of export would be the place of removal when the goods are cleared for export with bond – held that:- Respondent would be eligible for cenvat credit of service tax paid on GTA services availed for transportation of the goods from the factory to the port from where the goods were placed on board the vessel for export to their overseas buyer - issue stands decided in favour of the respondent as per judgment of Tribunal, that the respondent’s contract with the overseas buyers was on C&F basis; that in view of this, the place of removal would be the port from where the goods were exported – no merit in the revenue’s appeal - same is dismissed.
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2012 (12) TMI 104
Excisable Goods - reversal of cenvat credit – held that:- Appellant is engaged in manufacture of sugar and molasses in which process the waste product i.e. Bagasse and press mud are generated, it cannot be said that the appellant possibly could have maintained separate account for inputs for production of excisable items sugar and molasses and exempted items i.e. Bagasse and press mud. - Bagasse generated in the course of crushing of sugarcane is not an excisable item notwithstanding the amendment of Section 2(d) of the Central Excise Act, 1944 vide Finance Act, 2008 which became operative w.e.f. 13.05.2008 - Bagasse and press mud being waste product those cannot be termed as excisable goods so as to attract the provision of Rule 6(2) and Rule 6(3) of the Cenvat Credit Rules, 2004 - impugned order is, therefore, not sustainable and is set aside - appeal as well as stay petition is allowed.
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2012 (12) TMI 103
Denial of exemption at Sr. No. 91 of Notification No. 6/2006-C.E., - exemption was available to all goods supplied against International Competitive Bidding subject to condition that the goods in question should have been eligible for exemption from duties of Customs when imported into India – Held that:- Deemed export benefits dealt within para 8.6.1 and 8.6.2 deal with incentive granted by DGFT and not exemption granted by Ministry of Finance and there is no reason to refer to those conditions so long as they are not referred to in the notification claimed - relief from excise duty is not granted through the mechanism of deemed export but administered through exemption notification issued - Revenue has not made any case that any of the conditions specified in the exemption notification is not fulfilled - exemption cannot be denied for the reason that sub-contractor did not take part in International Competitive Bidding - waiver of pre-deposit allowed
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