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Showing 301 to 320 of 547 Records
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2012 (2) TMI 428 - CESTAT NEW DELHI
Exemption under Notification No. 67/95-C.E., dated 1-3-1995 - Extension for intermediate product - Held that:- appellants is eligible for benefit under Rule 19(2) of Central Excise Rules, 2002, although the final goods are exempted - appellants satisfy all conditions specified in Notification No. 43/2001-C.E. (N.T.), issued under the said Rule - appellant is eligible for benefit of Rule 19 and the major procedural requirements have been complied with. Therefore, we grant waiver of pre-deposit of dues arising from the impugned order for admission of the appeal and there shall be stay on collection of such amounts during the pendency of the appeal - stay granted.
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2012 (2) TMI 427 - CESTAT NEW DELHI
Discrepancy in RG-1 Register - Shortage of approximately 1% in the quantity of goods accounted in RG-1 register - Held that:- It is not possible to achieve exact match between goods accounted in bulk and goods accounted in packed condition. We note that the percentage difference detected is very minimal. Further in almost all commodities the manufacturers who want to maintain their reputation is likely to adopt practices by which the quantity in the retail pack is not less than what is declared on the pack. Since the assessment is based on MRP of the product this does not result in any revenue loss. This type of cases cannot be sustained without proof of clandestine removal and no such proof has been adduced - Decided against Revenue.
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2012 (2) TMI 426 - CESTAT BANGALORE
Waiver of pre deposit - Duty demand - Denial of benefit on Notification No. 43/2001 - Held that:- wherein waiver and stay were granted in respect of an amount of duty of excise which was demanded from the assessee on the ground that the benefit of the two notifications could not have been simultaneously availed by them. Both sides have adverted to other factual aspects of the case also. However, for the present purpose, we think we can take a view without detailed discussion on such factual details. Prima facie, any violation of conditions of the customs notification would have resulted in a demand of customs duty on the imported materials. The Revenue has no case that the packing materials were procured indigenously by the appellant without following the procedure laid down under Notification No. 43/2001-C.E. (N.T.). This notification prima facie does not refer to any customs exemption notification. On these facts, prima facie, the appellant can claim waiver of pre-deposit and stay of recovery on the strength of the Stay Order cited by the counsel. It is ordered accordingly. In the result, there will be waiver and stay in respect of the duty and penalty amounts - Stay granted.
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2012 (2) TMI 425 - CESTAT NEW DELHI
Waiver of pre deposit - Denial of Refund claim - Benefit of Notification No. 56/2002-C.E., dated 14-11-2002 - Held that:- appellants have a strong case in view of Chapter Note 8 in Chapter 38 and also in view of the fact that Revenue is accepting excise duty paid on the same goods manufactured in other localities. Therefore, we grant waiver of requirement of pre-deposit of entire dues arising out of impugned order and stay the recovery thereof during the pendency of the appeals - Stay granted.
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2012 (2) TMI 424 - CESTAT NEW DELHI
Denial of benefit of Notification No. 50/2003-C.E., dated 10-6-2003 - appellant has not filed the requisite declarations and has not exercised his option in writing before effecting the first clearance - Held that:- admittedly a declaration in terms of Notification No. 49/2003-C.E., dated 10-6-2003 was filed by the appellant. The purpose of filing a declaration is to put the Revenue on notice, as regards the appellant’s option to avail the benefit of the notification. Otherwise also, both the notifications, being area based notifications are available to the units located in that particular area. The only difference between the two notifications is that whereas Notification No. 49/2003-C.E. is available to the units located in the entire State but relates to the positive list of goods mentioned therein, Notification No. 50/2003-C.E. is available to units located in specified areas. The purpose of both the notifications is to develop the area by expanding the benefit of exemptions from payment of duty of excise.
The requirement of filing a declaration is a procedural condition. The benefit of the notification is not based upon the said procedural requirement of filing a declaration. In any case, declaration stands filed by the appellant. The fact that Notification No. 49/2003-C.E. was mentioned instead of Notification No. 50/2003-C.E., cannot be considered to be a mistake fatal to the appellant’s claim of benefit. It is well settled law that the substantive benefit if otherwise available should not be disallowed on the basis of minor procedural irregularities. In the present case, we find that even such irregularity of non-filing of declaration was not there - Decided in favour of assessee.
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2012 (2) TMI 423 - CESTAT NEW DELHI
Duty demand - Duty as per Rule 8 of the Central Excise Rules, 2002 - Held that:- Rule 8(3A) prescribed only that the goods will be treated as non-duty paid and the consequence prescribed under Central Excise Rules will follow. It does not say that any consequences under Cenvat Credit Rules, 2004 will follow. That is to say the assessee is entitled to take credit during the defaulting period. The only consequence of Rule 8(3A) can be that payment through Cenvat credit cannot be the proper discharge of duty liability when the default continues. But once the default is made good, along with interest we prima facie, do not see any reason to hold that the payment made through Cenvat credit during the period of default cannot be considered as good payment - Following decision of CCE v. Saurashtra Cements - [2010 (9) TMI 422 - GUJARAT HIGH COURT] has held that in such situation penalty under Rule 27 of Central Excise Rules only will apply which will be a small amount only - Conditional stay granted.
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2012 (2) TMI 422 - CESTAT NEW DELHI
Confiscation of goods - Excisability of weigh bridge - Revenue was of the view that inasmuch as all the parts and components of weigh bridge are being cleared by the appellant under the cover of one invoice, the same amounts to clearance of complete weigh bridge in SKD or CKD condition - Held that:- appellants have placed on record a letter from the Revenue, obtained by them in terms of provisions of RTI Act, 2005. In terms of the said letter, the order of the Commissioner (Appeals) i.e. Order-in-Appeal Nos. 196 & 197/CE/D-II/2011, dated 18-4-2011 stands accepted by the Committee of Commissioner and no appeal stand filed against before the Tribunal. In view of the above development, we are of the view that the appellant has a strong prima facie case in its favour so as to allow both stay petitions unconditionally - Decided in favour of assessee.
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2012 (2) TMI 421 - CESTAT KOLKATA
Cenvat credit - suppression/under-valuation - M/s. CPCL has approached to the Settlement Commission and without accepting the allegation in the show-cause notice, opted to settle the matter by paying duty and the interest which has been considered by the Settlement Commission while settling the issue wherein M/s. CPCL has been given immunity from penalty and prosecution. Therefore, the allegation of suppression has not attained finality as the same has not been adjudicated – Held that:- allegations were not established at any stage and they remained allegations only. The Settlement Commission has settled the issue and not decided or established the allegations of suppression, etc. On this point, the action taken by the Appellant cannot be faulted, since the proceedings before the Settlement Commission were conclusive. So far as the availment of CENVAT Credit on the strength of supplementary invoices dated 30-6-2006 is concerned, undisputedly they have taken the credit only on 31-7-2006 on the date when the duty had been paid by M/s. CPCL - We find that in the Appellant’s own case on the same issue (2011 (6) TMI 520 - CESTAT, MUMBAI) has been decided by the Co-ordinate Bench of the Tribunal at Mumbai, while relying upon the decision in the case of Bosch Chassis Systems (India) (2008 (9) TMI 106 - CESTAT NEW DELHI). In these circumstances, since we find that the impugned Order is not sustainable - Decided in favour of assessee.
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2012 (2) TMI 420 - CESTAT NEW DELHI
CENVAT Credit - Remission of excise duty through PLA - Wrong availment of CENVAT Credit - Held that:- prima facie Rule 8(3) or Rule 8(3A) of Central Excise Rules, 2002 do not have the effect of denying the eligibility for Cenvat credit because Rule 8(3A) prescribes that if there is a default, the consequence under the Central Excise Rules will follow and there is nothing mentioned about denying the benefit governed through Cenvat Credit Rules, 2004. In the normal circumstances, payment made through Cenvat credit account is a good discharge of duty liability. The exception carved out in Rule 8(3A) is that payment through Cenvat credit is not a good payment when assessee is a defaulter. This exception will last only till the default lasts. Once default is made good, the payment made through credit account becomes good payment even if paid before paying the defaulted amount - Conditional stay granted.
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2012 (2) TMI 419 - CESTAT NEW DELHI
Restoration of appeal - Denial of refund claim - Incomplete refund claim - Held that:- original refund claim was returned to the appellant and was not processed on the ground that requisite documents were not supplied by the appellant. The learned Counsel submits that all the documents were subsequently given. In view of the above fact, we are of the view that inasmuch as, no decision has been taken by the adjudicating authority on the refund application filed by the appellant; the matter needs to be remanded to him. Needless to say that based on the facts and circumstances as also the submission of the Counsel for the appellant, if any, he would process the refund claim, after observing the principles of natural justice including issuance of the show cause notice - Decided in favour of assessee.
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2012 (2) TMI 418 - CESTAT NEW DELHI
Valuation of goods - Whether transportation of the goods will form part of the assessable value of the goods cleared by appellants - Held that:- On going through the case records, we find that no such case has been made out therefore the argument that the transporting company is a related person and consideration realised by the transporting company for transportation should form part of the assessable value has no legal support. Section 4 of the Central Excise Act refers to “related person” only in the context of a sale to a related person. The Revenue has not been able to prove that the partnership firm of M/s. Miracle Trading Co. is a proxy with no separate entity. Neither is any case made out that part of the price of the goods is being realised by the transporting company for the benefit of the appellant company. Therefore in the facts of the case we do not see any merit in the orders of the lower authorities and we are in agreement with the argument of the appellants that the proceeds realised by M/s. Miracle Carrier and Trading Co. towards transportation of the goods will not form part of the assessable value of the goods cleared by appellants - Decided in favour of assessee.
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2012 (2) TMI 417 - CESTAT KOLKATA
Clandestine removal of goods - Detention of trucks loaded with M.S. Rod of M/s. J.M.D. weighing 15 MT and 14.99 MT - Held that:- there are three similar statements have been deposed by the both drivers which were contradictory to each other. I find that their second interrogatory statement is in complete contradiction of their first interrogatory statement and their third interrogatory statement is a complete contradiction of their second interrogatory statement. Undoubtedly the statement made U/s 14 of the Central Excise Act, 1944, has an evidentiary value, but if there is any contradiction among them, it needs further corroboration. The lower adjudicating authority has wrongly considered and appreciated the statement, dated 1-8-2008 of drivers, who deviated from their previous statement. Merely gross resemblance in distance and time taken in travelling to reach the loading place would not be incriminatory fact in absence of its specific and tangible corroboration.
Non-production of duty-paying document is not at all incriminatory fact on their part. Hence I hold that seized 29.99 MT MS bars is not liable for confiscation nor trader and its proprietor are liable for penalty U/s 11AC of the C. Ex. Act, 1944 read with Rule 25 & 26 of the Central Excise Rules. Moreover, in view of the discussion as above, as Demand of Central Excise Duty upon seized 29.99 NT MS bars has been found to be unsustainable, the appeals of M/s. Durga Rai Vijay Kumar of Samaur Bazar (UP) and its proprietor succeeds on merit. Hence technical issues, like time bar and jurisdiction of demand notice not being discussed. When the core issue of clandestine removal from JMD factory is not established, the question of confiscation of goods and imposition & penalty on the appellants does not arise. Where allegation of violation of Central Excise Act is not established, then subsequent imposition of fine or penalty or confiscation of goods is of no consequence. Invocation of Sec. 11AC of Central Excise Act is not sustainable in law if allegation of fraud, suppression of facts and misstatement are not proved to the contrary - Department could not produce any evidence contrary - Decided against Revenue.
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2012 (2) TMI 416 - CESTAT KOLKATA
Whether Drills and Bits used in the instant case are eligible for Cenvat credit - Held that:- The Lower Adjudicating Authority in his finding at page Three has admitted that the said goods were used in the “Captive Mines of the assessee” - As regards the Modvat/Cenvat credit on capital goods, if the mines are captive mines so that they constitute one integrated unit together with the concerned cement factory, Modvat/Cenvat credit on capital goods will be available to the assessee. On the other hand, if the mines are not captive mines but they supply to various other cement companies of different assessees, Modvat/Cenvat credit on capital goods used in such mines will not be available to the concerned assessee under the appropriate Modvat/Cenvat Rules. The matters are remanded to the respective original authorities for decision only on the above issue - Following decision of GAJAMBUJA CEMENT Versus COMMISSIONER OF C. EX., BHAVNAGAR [2007 (11) TMI 139 - CESTAT AHMEDABAD] - Decided in favour of assessee.
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2012 (2) TMI 415 - CESTAT NEW DELHI
Availment of CENVAT Credit - Availment in wrong and fraudulent manner on the basis of invoices for PVC compound wrong and fraudulent manner on the basis of invoices for PVC compound issued by M/s. Kashish Products Impex Pvt. Ltd. without actually receiving any material - Held that:- while the miscellaneous application is for rectification of the stay order dated 25-7-2011 on the ground that there are mistakes apparent from record in the stay order and the prayer in the application is for rectification of the order by withdrawing the same, the application does not mention as to under which provision of the Central Excise Act, the same has been filed. If, it is treated as application for rectification of the mistakes apparent from record under Section 35C(2), the same would not be maintainable as what Section 35C(2) provides is rectification/amendment of an order passed by this Tribunal under sub-section (1) of Section 35C, while the impugned order is not an order passed under Section 35C(1), but an order passed under Section 35F on the question of waiver of pre-deposit.
The burden to prove that the material covered under invoices, on the basis of which Cenvat credit had been taken by the appellant had actually been received by them, would be on the appellant and prima facie we find that no evidence in this regard has been produced by the appellant. Thus, the absence of manufacturing activity in the factory of KPIPL on the date of officer’s visited to the factory in 2006 is not the only ground for conclusion that the invoices issued by KPIPL to the appellant, on the basis of which Cenvat credit amounting to Rs. 72,56,374/- was taken, were bogus invoices - Time to make deposit is extended to six weeks - Decided partly in favour of assessee.
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2012 (2) TMI 414 - CESTAT KOLKATA
Waiver of pre deposit - Penalty u/s 114A - Held that:- whole case is built on the premise that raw material i.e. chemicals and yarn are not sent for job work and in fact are sold to the so called job worker by the applicant and the fabrics which is used by the so called job worker is not brought to the unit of the applicant. However prima facie there is no case of the department that raw materials imported are diverted or substituted or not accounted for or final product not exported. The 100% EOU is eligible for procuring raw material and goods locally without payment of duty besides importing raw material and chemicals without payment of duty. Movement of locally procured goods in this case have been under ARE-3. In these circumstances, we find that applicants have been able to make out a prima facie case in their favour and since the unit is 100% EOU, the balance of convenience is in their favour - Stay granted.
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2012 (2) TMI 413 - CESTAT NEW DELHI
Denial of Cenvat credit - After-sale repair services during warranty period - Service has been received after the removal of the goods from the place of removal of the goods - Held that:- On going through the definition of ‘input service’ and especially the inclusive portion of the definition, we are of the prima facie view that this ground for denial of credit is not correct, as there are a number of services mentioned in the inclusive portion of the definition of ‘input service’ which cannot be linked with the removal of the goods. Moreover, it has not been denied by the Department that the cost of providing free after-sale services i.e. warranty charges are part of the price of the goods on which Central Excise duty had been paid. In view of this, Cenvat credit of Service Tax paid on the after-sale services cannot be denied - the appellant have a strong prima facie case and requiring the pre-deposit of the Cenvat credit demand, interest and penalty would cause undue hardship - Stay granted.
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2012 (2) TMI 412 - ITAT CHANDIGARH
Profit on the alleged inaccurate sale and on account of unexplained investment - Held that:- Customs, Excise and Service Tax Appellate Tribunal in the assessee's own case there is no merit in any addition being made in the hands of the assessee on account of the alleged suppression in production and also alleged investment in purchase of raw material. In view thereof, we hold that no addition on account of profit on the sale of unaccounted production or on account of unexplained investment merits to be made in the hands of the assessee. In agreement with the observations of the Commissioner of Income-tax (Appeals) in deleting the aforesaid addition as no independent evidence has been brought on record to establish that the assessee had, (a) suppressed its production and ; (b) it made sale of its unaccounted production, outside the books of account. Upholding the order of the Commissioner of Income-tax (Appeals) we dismiss ground Nos. 1 and 2 raised by the Revenue.
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2012 (2) TMI 411 - ITAT CHENNAI
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... ... ..... elivery might not have been taken place by the assessee herself, but, the actual delivery were given or received by an agent of the assessee. Thus, we do not find any error in the final conclusion of the learned Commissioner of Income-tax (Appeals) that the loss was not a speculative loss within the meaning of section 43(5) of the Act. Therefore, we confirm the order of the learned Commissioner of Income-tax (Appeals) and dismiss the appeal of the Revenue. The cross-objection filed by the assessee is in support of the order of the learned Commissioner of Income-tax (Appeals) and as no ground has been raised in the cross objection challenging the order of the learned Commissioner of Income-tax (Appeals), the cross-objection filed by the assessee is infructuous and hence dismissed. As a result, the appeal of the Revenue and the cross-objection of the assessee both are dismissed. The order pronounced at the close of the hearing in the presence of the parties on February 1, 2012.
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2012 (2) TMI 410 - ITAT CHANDIGARH
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... ... ..... section 2(22)(e) could only be applied to the shareholder and the appellant-company not being a shareholder in M/s. Santosh Box Factory Ltd., and thus the addition cannot be sustained in the hands of the appellant being legally incorrect. Hence, the addition is hereby deleted. However, the Assessing Officer is directed to take suitable action in the case of beneficiaries/ shareholders. We have carefully perused the rival submissions and fact-situation of the case. Having regard to the findings of the learned Commissioner of Income-tax (Appeals), and the facts of the case, we do not find any infirmity in his order. Hence, findings of the Commissioner of Income-tax (Appeals) are upheld. Ground No. 1 is decided in favour of the assessee and against the Revenue. Ground Nos. 2 and 3 are general in nature and need no adjudication. In view of the above legal and factual discussions, the appeal of the Revenue is dismissed. The order pronounced in the open court on February 22, 2012.
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2012 (2) TMI 409 - ITAT CHENNAI
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... ... ..... the said amount must have been claimed as a deduction during any assessment years earlier. In the present case that primary condition is absent. The assessee has not made such a claim of expenditure during any of the earlier years nor is it the claim of the Revenue that the assessee has made such a claim during any of the earlier assessment years. Once it is noticed that the amount has not been claimed as deduction or expenditure in any of the earlier years, the provisions of section 41(1) cannot be invoked to bring to tax the amount of Rs. 30,23,762 which has been waived by M/s. TVS Finance and Services Ltd. In the circumstances, we are of the view that the addition as made by the Assessing Officer and as confirmed by the learned Commissioner of Income-tax (Appeals) invoking the provisions of section 41(1) of the Act is liable to be deleted and we do so. In the circumstances, the appeal of the assessee is allowed. The order was pronounced in the court on February 10, 2012.
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