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Central Excise - Supreme Court - Case Laws
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2010 (12) TMI 146
Penalty - reduced penalties - that Rule 96-ZQ and Rule 96-ZO have a concept of discretion inbuilt cannot be sustained meaning thereby that the said Rules are mandatory and there is no discretion available for reducing the penalty – Provisions of Rule 96-ZP being identical and pari materia with that of Rule 96-ZQ and Rule 96-ZO, the ratio of the aforesaid decision rendered by Three Judges Bench (2008 -TMI - 31520 - SUPREME COURT) is squarely applicable to the facts and circumstances of the present case. - appeals allowed - order passed by the High Court as also by the Tribunal set aside and restore the order passed by the adjudicating authority
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2010 (12) TMI 98
Order – non-speaking order - High Court failed to discharge its responsibility of recording reasons before recording its conclusions while disposing of an appeal - set aside the judgment and order passed by the High Court and remit back the appeal to the High Court for fresh consideration in accordance with law
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2010 (12) TMI 31
Modvat / Cenvat credit - credit on petroleum products - Rule 57B - Held that: - the appellant-assessee is entitled to take credit in respect of the petroleum products used by them in the generation of electricity as inputs for the amount actually paid on account of specified duty upto 2nd June, 1998 and thereafter @ 95% of the duty paid - Jindal Poly Films Ltd. vs. CCE (2006 -TMI - 47612 - SUPREME COURT OF INDIA)
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2010 (12) TMI 26
SSI Exemption - Clubbing - User of brand name - Aggregate value of turnover - The flavours are researched and developed by PEL, but were allowed to be manufactured by the appellant with the code names given by PEL. The flavours are used in the manufacture of beverages like Gold Spot, Limca, Rimzim etc. - Held that: - three companies in question were intertwined in their operation and management - Therefore it would likely seem that the purported fragmentation of the manufacturing process was but a mere ploy to avail of the SSI exemption. Piercing the corporate veil, when the notions of beneficial ownership and interdependency come into the picture, are no longer res integra. - turnover to be clubbed. Regarding brand names, The appellant herein manufactures flavours which fall within the ambit of the code names' and it is a fact on record that these codes are key to identifying the flavours which are commercially transferable. - Since the appellant was not the owner of the said brand names in question, the Tribunal was justified in holding that the appellant will not be entitled to the benefit of SSI exemption
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2010 (12) TMI 25
SSI Exemption - Use of brand name of 'TATA' alongwith with own brand namd 'ACE' on cover assembly as "TATA ACE" - Held that: - in order to avail of the benefit of the exemption notification, the assessee must establish that his product is not associated with some other person. To put it differently, if it is shown that the assessee has affixed the brand name of another person on his goods with the intention of indicating a connection between the assessee's goods and the goods of another person, using such name or mark, then the assessee would not be entitled to the benefit of exemption notification. We may hasten to clarify that if the assessee is able to satisfy the Adjudicating Authority that there was no such intention, or that the user of the brand name was entirely fortuitous, it would be entitled to the benefit of the exemption. the brand name "TATA" did not belong to the assessee. It is also evident that by using the said brand name, the assessee had not only intended to indicate a connection between the goods manufactured by them and a Tata Company; but also the quality of their product as that of a product of Tata Company, as they were supplying their goods to the said company. Thus, the bar created in Clause 4 read with Explanation IX of the Notification is clearly attracted in the present case, disentitling the assessee from the benefit of the exemption notifications under consideration. We are of the opinion that the decision of the Tribunal is clearly erroneous and deserves to be set aside.
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2010 (12) TMI 15
Valuation - Sale through related parties - normal value - penalty for short payment - Section 4 and 11AC - of CEA, 1944 and The Revenue contends that an obvious corollary to this is that the freight charges so arising between the factory gate of the assessee and the place of removal at the depot of the related person should constitute the value of the goods for the purposes of computation of excise duty. It further contends that since, the `place of removal' is not the assessee's factory gate but rather the depot of the related person, the price is known, only at the price at which goods are sold to whole sellers by the related person. - Held that: - contention of the respondent (manufacturer) that it is justified in claiming exclusion of freight charges arising between the factory gate of the respondent to the depot of the related person, cannot be sustained - order of tribunal reversed - decided in favor of revenue. Regarding penalty u/s 11AC - It is well settled that when the statutes create an offence and an ingredient of the offence is a deliberate attempt to evade duty either by fraud or misrepresentation, the statute requires `mens rea' as a necessary constituent of such an offence. But when factually no fraud or suppression or mis- statement is alleged by the revenue against the respondent in the show cause notice the imposition of penalty under Section 11 AC is wholly impermissible.
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2010 (12) TMI 11
Modvat / Cenvat Credit - export - availment of credit while claiming duty drawback - credit availed after filing declaration in Form AR4 - The Revenue alleged that the assessee vide declarations in Form AR4 dated 4.8.1998, 17.8.1998 and 22.8.1998 had exported certain quantity of fabrics in its own account, and in the said AR4s had declared that the assessee had manufactured the fabric as mentioned in AR4, and that the benefit of Modvat under Rule 57A has not been availed, and also that it had not availed the facilities under Rule 12(1)(b) and 13(1)(b) of the Rules, and that export was made in discharge of export obligation under "advance licence" file. - assessee contended before this Court that it had taken credit of the duty on indigenous inputs only after the replenishment arrived. That is to say, the assessee had not claimed Modvat credit at the time the declarations under the advance license scheme were filed, but only later. - Held that: - The imported inputs were primarily stock replenishments that were used in the execution of other orders, and allowing the assessee to claim Modvat credit on the indigenous input would tantamount to giving a benefit twice for the same process that began with the manufacture and culminated in the export of the specified goods. The assessee cannot be held to be not entitled to claiming Modvat credit on finished goods where duty is not incident. Any attempt to avail it subsequently, casts serious aspersions on the bonafide intention of the assessee. The argument of the assessee that action had to be taken under the Duties Drawback Rules, 1971 and not through reversal of credit does not bear merit. The reversal of credit is meant to deny the assessee of a benefit that they would have otherwise enjoyed without justification. The drawback equivalent to CVD is legitimately permissible vide the process of AR4 declarations and thus, it is the benefit that is enjoyed without justifiable basis that has to be reversed. - Decided in favor of revenue
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