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Central Excise - Case Laws

Showing 161 to 180 of 225 Records

• 2013 (8) TMI 230
  

  Cenvat credit - Education cess - Following the decision in case of EMCURE PHARMACEUTICALS LTD. (2008 (1) TMI 147 - CESTAT, MUMBAI) that non-obstante clause in Rule 3(7)(a) of CCR, 2004 is applicable in respect of BED paid u/s 3 and COMMISSIONER OF CENTRAL EXCISE. DAMAN Versus M/s BHIM POLYFAB INDUSTRIES [2013 (2) TMI 417 - CESTAT AHMEDABAD] - Decided in favour of assessee.

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• 2013 (8) TMI 229
  

  Waiver of pre-deposit – Stay Application – Appellant is a job worker for discharge of duty liability on the scrap which arises during the job work processing done by him and discharging the same from cenvat account available with him - Held that:- Issue seems to be in favour of the assessee as per the decisions of the Tribunal more specifically FAG Engineering (I) Ltd.[ 2011 (1) TMI 95 - CESTAT, AHMEDABAD] at the same time, since the appellant has deposited the entire amount of the duty liability and is contesting the issue on merits - Application for the waiver of pre-deposit of the balance amounts involved allowed – Decided in favor of Assessee.

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• 2013 (8) TMI 228
  

  Cenvat credit - Invoice addressed at corporate office - Held that:- The registered office and Vatva office both are located in the same place and appellant has simply utilised the credit at Vatva instead of distributing it to various units - It is also noticed that appellant has not got any extra benefit by doing this - In the absence of any legal requirement to avail credit based on the services received during the relevant time and in the light of the decision cited by the learned counsel, the procedural irregularity has to be ignored and the demand confirmed has to be set-aside - Decided in favour of assessee.

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• 2013 (8) TMI 227
  

  Stay when there is no sitting due to administrative exigencies - Circular No. 925/15/2010-CX., dated 26-5-2010 – adjustment of rebate with demand - Held that:- Appellant could not be found fault with, since there is no sitting due to administrative exigencies – Reliance placed on the Circular No. 925/15/2010-CX., dated 26-5-2010 issued by the Central Board of Excise & Customs, which states that no coercive proceedings should be initiated if there is no fault on the part of the assessee, and also the decision of the Apex Court in the case of Commissioner of Customs & Central Excise, Ahmedabad v. Kumar Cotton Mills Pvt. Ltd., [2005 (1) TMI 114 - SUPREME COURT OF INDIA] – Moreover, appellant claimed rebate and the Revenue also accepted the case of the appellant - No proper opportunity has been given to the appellant - Revenue had granted stay earlier after taking into consideration that the appellant had already deposited a sum of Rs. 43,00,000/- in the year 1991.

  Taking into consideration these facts, it is held that the respondent has acted hastily and adjusted the amount without affording proper opportunity to the appellant. Under the circumstances, there is clear violation of the principles of natural justice - Direction to the respondent to take up the matter, consider the case of the appellant and after giving opportunity to the appellant, decide the matter in accordance with law as expeditiously as possible, preferably within a period of four weeks from the date of receipt of a copy of this order - Setting aside the above said impugned orders of the respondent only in respect of adjustment of rebate amount, and in all other aspects, the orders passed by the respondent shall remain unaltered – Decided in favor of Assessee.

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• 2013 (8) TMI 226
  

  Condonation of delay in filing appeal before Commissioner(A) - Adjudicating authority which sanctioned the refund amount on the first show-cause notice, issued a fresh show cause notice on the ground that the refund was erroneously granted - After awarding the opportunity of hearing, it confirmed the recovery of refund amount of Rs. 4 lakhs vide its impugned order dated 23.2.2009 - The petitioner herein challenged the same before the Commissioner(Appeals) raising various grounds in such challenge. Such appeal was preferred on 3.8.2009 i.e. five months after the order impugned was passed - Commissioner(Appeals) rejected the condonation of delay application and held that it does not enjoy the powers to condone delay beyond a period of 30 days – Subsequenty, Tribunal confirmed the order of Commissioner(A) and rejected the condonation of delay application – Held that:- There is no quarrel that the power of Commissioner(Appeals) to condone the delay is of three months maximum. And, therefore, no fault can be found with the approach of both the authorities as far as question of condonation of delay is concerned. None of these authorities has decided the question on merit after the second round of litigation began – As per decision of D.R. Industries Ltd. v. Union of India [2008 (3) TMI 213 - HIGH COURT GUJARAT ] held that this Court has extraordinary powers in appropriate case to interfere even while upholding the contention that there is statutory limitation to which delay can be condoned by the authorities. In Senior Superintendent of Post Office v. Union of India [2012 (6) TMI 271 - GUJARAT HIGH COURT ], this court recognised that if an aggrieved person knocks the door of High Court seeking redressal under writ jurisdiction for valid reasons, to obviate extraordinary hardship and injustice such challenge can be entertained even beyond the period of limitation – Refund allowed – Decided in favor of Assessee.

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• 2013 (8) TMI 225
  

  Period of limitation for Recovery of interest on account of retrospective revision of the prices – demand notice issued after 4 years - Held that:- Relying upon the decision in the case of Commissioner of Central Excise versus International Auto Limited,[2010 (1) TMI 151 - SUPREME COURT OF INDIA], it was held that interest is charged to compensate for loss caused because of late payment of duty. The said loss should be compensated - Interest chargeable under Section 11AB was payable on the duty paid under Section 11A(2B) under the supplementary invoice on the price differential on account of retrospective price escalation received by the assessee and if the same has not been paid, the same would be recovered from the assessee.

  Period of limitation for demand of interest in case change in price with retrospective period – Held that:- Payment of interest is to be made under Section 11A and, therefore, the period of limitation prescribed therein would equally apply as has been held by the Delhi High Court in the case of Kwality Ice Cream Company [2012 (1) TMI 88 - Delhi High Court] and Gujarat High Court in Gujarat Narmada Fertilizers Company Limited [2012 (4) TMI 309 - GUJARAT HIGH COURT]. These judgments have relied upon the decision of the Supreme Court approving the view of the tribunal in TVS Whirlpool Limited [1999 (10) TMI 701 - SUPREME COURT OF INDIA] - The period of limitation prescribed for demand of duty under Section 11A is normally one year and, in exceptional circumstance of a case falling under the proviso to Section 11A(1), the period of limitation is five years. But that would be applicable only in case of misstatement, fraud, concealment etc., which is not the case here. As such, in the present case, the period of limitation for the demand for duty would be one year. By the same logic, the period of limitation for demand of interest thereon would be one year – Decided in favor of Assessee.

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• 2013 (8) TMI 224
  

  Proof of Export - Documents are necessary for availing the benefit of Rule 19 of the Central Excise Rules, 2002 for the export of goods - Applicant had cleared the goods for export viz. Chlorinated Paraffin wax vide ARE-1 under letter of undertaking (LUT) under Rule 19 of Central Excise Rules, 2002 – Held that:- As per provision of the said Rule 19 read with Notification No. 42/2001-C.E. (N.T.), dated 26-6-2001, as amended, the applicant was required to submit the proof of export to the authority with whom they furnished the LUT, within six months from the date of clearance from the factory and in the event of failure, they are required to pay the amount of duty due on the said goods along with interest.

  Further, The Board’s circular No. 586/23/2001-CX., dated 12-9-2001 further stipulates that the exporter is required to submit Original and Duplicate Copies of ARE-1 duly certified by the customs within six months from the date of clearance. Moreover, the instruction contained in chapter 7 of Central Excise Manual of Supplementary Instructions mandate the submission of proof of exports in case of export of goods under bond. Government observes that the Original and Duplicate copies of ARE-1 certified by the customs are mandatory and vital documents because it contains the endorsement of the customs to the effect that the goods as per ARE-1 are actually exported. In addition to that as per Part-II Para 13.2 of the said Manual besides original the duplicate copies of ARE-1 some other supporting documents namely self attested photocopy of Bill of Lading and shipping Bills (export promotion copy) are also to be furnished.

  In absence of these vital documents it cannot be ascertained as to whether the goods cleared under LUT were actually exported or not. In the instant case the applicants have not furnished the original and duplicate copy of ARE-1 and shipping Bill - Their contention that the said documents were lying with customs authority is not maintainable inasmuch as they failed to submit any evidence in support of their contention. The ARE-1 was prepared on 12-9-2007 and there is no reason that applicant could not produce the said documents even after the lapse of 5 years. They could have procured the said documents from Customs if they were available with them. Applicant has neither submitted the said documents till date which can prove the export of goods, nor made any effort to procure the same if they are with Customs. No documentary evidence is available to suggest that documents are with Customs. The Commissioner (Appeals) has discussed the entire issue in detail in the impugned Order-in-Appeal, and Government is in agreement with the findings of Commissioner (Appeals) – Revision application rejected – Decided against the Assessee.

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• 2013 (8) TMI 223
  

  Benefit of exemptions / rebate on export - various incentive schemes - Advance Authorisation for annual requirement or facility under Rule 18 of Central Excise Rules, 2004 – Applicability of Notification in the case – Held that:- Notification 93/2004-Cus. and Not. No. 94/2004-Cus are issued in respect of different export promotion schemes - Since applicant was working under Not. No. 94/2004-Cus., he has to comply with the conditions laid down said notification. The condition no. 8 of said notification is very much applicable in the instant case and the amendment dated 17-5-2005 in Not. No. 93/2004-Cus., dated 10-9-2004 has no applicability to the Not. No. 94/2004-Cus., dated 10-9-2004 - Hon’ble Supreme Court has held in the case of Mihir Textile Ltd. v. CCE, Bombay – [ 1997 (4) TMI 75 - SUPREME COURT OF INDIA] that exemption/benefit depending upon satisfaction certain conditions cannot be granted unless such conditions are complied with even such conditions are only directory. Hon’ble Supreme Court has also held in the case of M/s. ITC Ltd. v. CCE – [ 2004 (9) TMI 103 - SUPREME COURT OF INDIA] and in the case of M/s. Paper Products v. CCE – [ 1999 (8) TMI 70 - SUPREME COURT OF INDIA ] that plain and simple meaning of the wordings of statute are to be strictly adhered to - The amendment made in Not. No. 93/2004-Cus. cannot be said to be applicable to Not. No. 94/2004-Cus – Revision application rejected – Decided against the Assessee.

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• 2013 (8) TMI 212
  

  Refund on accumulated CENVAT credit - nexus between the products exported and the input services. - Revenue filed appeal against allowing refund of accumulated CENVAT credit under Rule 5 of CCR, 2004 – held that:- Assessee would be entitled for the refund of CENVAT credit- Revenue appeal failed both on merits as well as on the ground of judicial discipline - the only ground taken by the Revenue for appealing is that this decision has not been accepted - the judicial discipline requires that the decision of the Tribunal in the case of CST vs. M/s. Convergys India Pvt. Ltd. (2009 (12) TMI 562 - CESTAT, NEW DELHI) required to be followed – appeal decided against the revenue.

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• 2013 (8) TMI 208
  

  Interest on defaulted payment - Held that:- discharge of duty liability by the appellant through the cenvat account which had balance. Despite the fact that the said duty liability on the finished goods cleared by the appellant has been discharged by them by utilising the cenvat credit and hence government was for all practical purposes was not deprived of the duty - Following decision of SOLAR CHEMFERTS PVT. LTD. Versus COMMISSIONER OF CENTRAL EXCISE, THANE-I [2011 (6) TMI 640 - CESTAT, MUMBAI] - Decided in favour of assessee.

  Quantum of penalty - Held that:- appellant has violated the provisions of Central Excise Rules, 2002 by utilising the cenvat credit for discharge of duty liability when he was debarred to do so, having defaulted in making payments as per the Central Excise Rules, 2002 - Decided against assessee.

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• 2013 (8) TMI 207
  

  Pre-deposit – Stay Application - Cenvat credit of service tax paid for the services rendered by the commission agents for sales promotion of their final products – Held that:- Judgment of the Hon’ble High Court of Gujarat in the case of Cadila Healthcare Ltd [2013 (1) TMI 304 - GUJARAT HIGH COURT] is on merits and against the Appellants but appellant was under a bonafide belief and availed the cenvat credit of the service tax paid on commission agent services - Question of limitation is debatable and arguable - appellants needs to be put to some condition to hear and dispose the appeal – Thus, the appellant directed to pre-deposit an amount of Rs.10,000/- within a period of four weeks.

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• 2013 (8) TMI 206
  

  Recovery of duty from the successor of the defaulter - Section 11 of the Central Excise Act read with Section 142 of the Customs Act, 1962 - Property of Vaishnavi was taken over by Gujarat Industrial Investment Corporation Ltd. (GIICL) and on an occasion transferred to M/s. Sachin Dyeing & Printing Mills Pvt. Ltd. on as is whereas basis as per the agreement of sale. The central excise duty initiated an action of recovery of central excise duty against M/s. Sachin Dyeing & Printing Mills Pvt. Ltd. as dupe of defaulter company from transferring company – Held that:- Appellant cannot be considered as successor as neither the business or trade of Vaishnavi is transferred to the appellant hence conditions of proviso to Section 11 of the Central Excise Act will not apply and are not sustainable.

  Though assets were sold, sale of assets by itself would not be transfer of business in whole or in part. There must be material on record to show that the business has been transferred to the Petitioner and consequent thereto the Petitioner has succeeded in said business - In the facts and circumstances of this case, M/s. Sachin Dyeing & Printing Mills Pvt. Ltd. are not successors in business or trade of Vaishnavi relying upon the decision in the case of Krishna Lifestyle Technologies Ltd.[ 2008 (2) TMI 2 - HIGH COURT, BOMBAY]. The facts of the present case is clearly distinguishable from the facts of the case Rana Girders Ltd. [2012 (11) TMI 478 - ALLAHABAD HIGH COURT], wherein there was a clear and unequivocal stipulation; in the deed of sale and in the agreement of sale of plant & machinery; that all statutory liabilities arising out of said property (land & building) shall be borne by purchaser and that the corporation shall not be held responsible for the same and have held that central excise dues and penalties are statutory liabilities and hence M/s. Rana Girders Ltd. are liable to pay the said statutory dies as they have agreed for discharge of all statutory liabilities.

  In the case in hand, agreement does not talk about any statutory liabilities that may be undertaken to be paid by the appellant M/s. Sachin Dyeing & Printing Mills Pvt. Ltd. The facts of the case in hand are totally different - Hon’ble High Court of Bombay in the case of Krishna Lifestyle Technologies Ltd. has specifically dealt with the succession of the business as is referred to in proviso to Section 11 of the Central Excise Act, 1944 – Decided in favor of appellant.

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• 2013 (8) TMI 205
  

  Cenvat credit - Authority held that assessee availed cenvat credit on the basis of fake invoices - Held that:- provisions of section 11AC are invokable as the party fraudulently issued the invoices without accompanying the goods and have availed the cenvat credit with sole intention to defraud the Revenue - Unbeleivable that huge quantity of winding wire of copper has been shown to be transported through passenger vehicle Tata Sumo in single day from Delhi to Jaipur - these activities had been fraudulently undertaken by the appellant - Decided against Assessee.

  Imposition of penalty - Held that:- on the basis of finding on clandestine removal that the invoices have been issued and no goods have been supplied to the appellant, it has ingredients of fraud, mis-statement, intention to defraud the Revenue - it is fit case to impose equivalent penalty under section 11AC - Thus there is no case of any reduction of penalty - Decided against Assessee.

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• 2013 (8) TMI 204
  

  Imposition of penalty - Commissioner upheld penalty against assessee - Held that:- copy of statement of the partner of the appellant tendered before investigating team the last invoice issued by them was numbering 266 dated 28.7.2008 - there has been clandestine removal and appellant is liable for imposition of penalty under Rule 25 subject to provisions of section 11AC. This is fit case for imposition of equivalent penalty. Benefit of reduced penalty as provided under section 11AC is not available as penalties have been have been levied under Rule 25. Reference of section 11AC in the rules is only for limiting the penalty equalvant to duty/cenvat involved - Decided against assessee.

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• 2013 (8) TMI 203
  

  Suppression of tax - manufacture of gutka without licence - Held that:- This a case involving manufacture without getting registration thus attracting charge of suppression. Duty for the previous period involving excluded period is rightly confirmed though the adjudicating authority has failed to impose penalty of equivalent amount under section 11AC - Decided in favour of Revenue.

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• 2013 (8) TMI 202
  

  Waiver of Pre-deposit – Cenvat Credit on service Tax paid on CHA Services for the services rendered for the goods exported from port – Held that:- Relying upon the decision in the case of Adani Pharmachem Pvt. Ltd. [2008 (7) TMI 102 - CESTAT AHMEDABAD], Cenvat Credit is available on CHA services used for the export of goods – Waived pre-deposit – Decided in favor of Assessee.

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• 2013 (8) TMI 201
  

  Waiver of Pre-deposit - Availment of CENVAT Credit of Service Tax paid on the construction services which are used for laying the pipelines for drawing the water from Narmada canal to their factory premises – Held that:- Appellant’s consistent stand before both the lower authorities that the water which is drawn from Narmada canal is used for the manufacturing activity which is manufacturing of chemicals - This issue is not disputed by the lower authorities - The consistent stand of the appellant before both the lower authorities has not been disputed by the adjudicating authority as also the fact that the appellant had given the manufacturing process chart to the lower authorities, which is in detail, that the water which is drawn from Narmada canal is used for manufacturing activity – Application for waiver of pre-deposit allowed – Decided in favor of Assessee.

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• 2013 (8) TMI 200
  

  Limitation – Period of filing of rebate claim under Section 11B of the Central Excise Act, 1944 - Petitioner had submitted the rebate claim on 5-11-2007, along with the relevant documents. The second respondent had returned the enclosures submitted by the petitioner, along with the rebate claim application, vide letter, dated 20-2-2008 - Final confirmation of the date of shipment had been made only on 23-12-2008 – Held that:- Rebate claim scheme has been introduced as a beneficial scheme to encourage exports it has to be construed in a liberal manner. As such, the relevant date for calculating the period of limitation should be taken as 5-11-2007, when the petitioner had submitted the rebate claim application. Even though certain documents filed along with the rebate claim application had been returned to the petitioner, it cannot be said that the rebate claim application had not been filed on 5-11-2007. In fact, the second respondent had retained the application for rebate of duty, in Form C. It is also noted that the final confirmation of the date of shipment was made only on 23-12-2008, due to the delay by the Shipping Corporation of India Limited. Therefore, it cannot be said that the rebate claim had been made by the petitioner, belatedly, beyond the period of limitation prescribed, under Section 11B of the Central Excise Act, 1944 – Rebate granted – Decided in favor of Assessee.

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• 2013 (8) TMI 199
  

  Period of limitation of refund claim under section 11B of the Central Excise Act – Held that:- Relying upon the decision in the case of Dena Snuff (P) Ltd v. Commissioner of Central Excise, Chandigarh [2003 (9) TMI 84 - SUPREME COURT OF INDIA], it has been held that period of limitation of one year prescribed under Sub Section (1) will not apply in case duties are paid under protest.

  Hon'ble Supreme Court held that the relevant date from which the period of limitation starts to run is from the date on which the assessee's own case finally decided by the Tribunal - Issue relating to period of limitation, uniformly held that no limitation was applicable to the payment made under protest - Payment made herein is also deemed to be under protest and no limitation is applicable and the claim is maintainable and is rightly decided by the CESTAT – Decided against the Revenue.

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• 2013 (8) TMI 198
  

  Remission of duty under Rule 21 of the Central Excise Rules, 2002 - M/s. Hindustan Coca Cola Beverages Pvt. Ltd. is manufacturers of aerated water, mineral water and soda - After filling with mineral water and aerated water in bottles, there occurred some breakage in the store of finished goods - Applicant supplied the figure of breakage only after pursuance of department and that they did not file any application for remission of duty – Show-cause Notice issued making demand of duty along with interest and also imposed penalty of an amount equal to duty on applicant – Held that:- Circular No. 930/20/2010-CX., dated 9-7-2010 is clarificatory in nature, and when any circular is issued clarifying the provision of any previous circular, the same is applicable retrospectively. In the instant case, the Circular, dated 9-7-2010, has been issued to clarify the provisions of Circular, dated 17-9-1975 in light of some judicial pronouncement, introduction of MODVAT/CENVAT Scheme and also in view of Central Excise Rules, 2002 – The said circular being clarificatory in nature, has a retrospective effect - In case of breakage/destruction of final product, remission can be claimed under Rule 21 of Central Excise Rules, 2002, but the remission is granted subject to condition of reversal of CENVAT credit availed on the inputs. In this case, the applicant was required to file application for remission of duty, which he failed to do. As such, they rendered themselves liable for payment of duty along with interest and penalty - Decided against the Assessee.

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