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- 2011 (1) TMI 1514 - CESTAT, BANGALORE
... ... ..... ithin any of the several heads of exemption. If it fell within any one head of exemption, it would be free from tax notwithstanding that the conditions of another head of exemption are not satisfied and such income is not free from tax under that head of exemption.” Emphasis supplied 9.It can be seen from the above reproduced ratio of the Hon ble High Court, each limb of the definition can be considered as independent eligible for exemption. If that be so, in the factual matrix of this case, as narrated hereinabove, as the said services were, directly or indirectly, used for the purpose of their business, credit cannot be denied. Accordingly, impugned order is set aside and appeal is allowed with consequential relief. 10.Since I decided the issue on merits, I am not recording any finding on the submissions made by the appellant as the lower authorities have decided the issue beyond the allegations raised in the show-cause notice. (Pronounced and dictated in open court)
- 2011 (1) TMI 1489 - CESTAT AHMEDABAD
Recovery of amount jointly and severely on various assessees/appellants - Held that:- Tribunal in number of precedent decisions, has held that such confirmation of demand jointly and severely on various assessees/appellants, is not in accordance with law. In all such earlier matters, appeals stand remanded with direction to original adjudicating authority to decide the liability of each individual separately. Matter remanded to Commissioner for de novo adjudication - appeal allowed by way of remand.
- 2011 (1) TMI 1442 - CESTAT BANGALORE
... ... ..... manufacture of Rice Bran Oil, some waste arises in the form of fatty acid, wax and gums, which they cleared as waste product by availing benefit of Notification No.89/95. We find that an identical issue came up before this bench in the case of CCE, Hyderabad vs. M/s. Shree Siddhi Vinayaka Agro Extractions (P) Ltd. and CCE, Hyderabad vs. Priyanka Refineries Ltd. reported in 2010 (249) ELT 70 (Tri.-Bang.). wherein this Bench has taken a view that these products, which arise during the course of manufacture of rice bran oil and vegetable refined oil as waste are eligible for the benefit of Notification 89/95. At this juncture, we find that the appellant has made out a prima facie case for waiver of the pre-deposit of the amounts involved. The application for waiver of pre-deposit of the amounts involved. The application for waiver of pre-deposit of the amounts involved is allowed and recovery thereof stayed till the disposal of the appeal. Pronounced and dictated in open Court.
- 2011 (1) TMI 1421 - CESTAT KOLKATA
... ... ..... ibunal were to the effect that the process undertaken by the appellants does not amount to manufacture, therefore, we find merit in the contention of the appellants that there was no willful suppression with intent to evade payment of duty. 12. In respect of clubbing of clearance, we find that the clearances of two other units were clubbed with the clearance made by the appellants without issuing any show-cause notice to the other Unit. There was no notice to the units namely, M/s Kwik Stage and M/s Diomond Machinery, for clubbing clearance with the clearance of the present appellants. Hence, demand by clubbing the clearance of the other unit without issuing any show-cause notice, is not sustainable. In the circumstances, without going into the issue of manufacturing or other issue of goods manufactured on job work basis, we find that the demand is time bar, hence, set aside and the penalties are also set aside. Appeals are allowed. Dictated and pronounced in the open Court.
- 2011 (1) TMI 1372 - CESTAT MUMBAI
... ... ..... ate that their final product is wool top/fabrics and not grease and without separating grease from grease wool they cannot manufacture the final product. Prima facie we find that the applicant has made out a case in their favour on this stage. Accordingly, we waive the requirement of pre-deposit of entire demand, interest and penalty and stay demand thereof during pendency of the appeal. 7. The applicant has also filed an application for out-of-turn hearing of the appeal on the ground that duty, interest and penalty are more than ₹ 1 crore. We find that there are several cases pending before this Tribunal where duty involved is more than crores of rupees and we are still running in the year 2003. Considering the fact that the duty involved is only of ₹ 53,78,509/-, we do not find a fit case for out-of-turn hearing. Accordingly, the application for early hearing is rejected. Registry is directed to list the matter in its own course. (Pronounced in open Court)
- 2011 (1) TMI 1347 - CESTAT NEW DELHI
... ... ..... fficult to reject the contention regarding failure of principles of natural justice by the authorities below while deciding the matter. The authority has rejected the invoices merely on the basis of statements of the transporters. The fact that invoices carried stamp at check post which would prima-facie disclose the goods having crossed the check post barrier has not been properly dealt with. 6.Needless to say, that the above findings are prima-facie findings for the purpose of deciding the stay application. 7.Learned Advocate for the appellants has also submitted that considering the loss suffered by the appellants they have financial difficulties in complying with the requirement of pre-deposit. 8.Taking into consideration the above facts, we find that prima-facie case having been made out for the waiver of the amount demanded under the impugned order. Hence, the application is allowed and amount demanded under the impugned order is waived till the disposal of the appeal.
- 2011 (1) TMI 1329 - CESTAT BANGALORE
... ... ..... the goods removed during July, 2007, August, 2007 and September, 2007. There is no dispute that credits utilized were eligible credit. It is also undisputed that the credit utilized for the subsequent period during the defaulted period May, 2007 and June, 2007. The Commissioner (Appeals) has followed the judgment of the Hon’ble High Court of Bombay in Lloyds Steel Industries Ltd. 2005 (183) E.L.T. 351 (Bom.) 2003-TIOL-145-HC-Mum and also decision of the Tribunal in Heavy Engineering Corporation Ltd. 2008 (230) E.L.T. 179 (Tri.-Kolkata) and in M.M. Silk Mills 2007 (211) E.L.T. 78 (Tri.-Mumbai) . 6. In my considered view, the conclusion reached by the Commissioner (Appeals) cannot be faulted as he has correctly followed the law which has been settled by various judicial forum. In view of this, I hold that the impugned order is correct and legal and does not suffer from any infirmity. The appeal filed by the Revenue is rejected. (Pronounced and dictated in the Court)
- 2011 (1) TMI 1318 - CESTAT NEW DELHI
... ... ..... ch, 2000 corresponds to “d” factor 197 has been taken as the reason for rejecting the claim that the “d” factor was not 158. Learned SDR at this juncture pointed out that no evidence for installation has been produced before the Commissioner. However, this may not be relevant at this stage. As it has not been shown that there was any obligation on the part of appellant to indicate changes which happened in July, 2010 which was subsequent to withdrawal of the scheme with effect from 1-4-2000 and since Commissioner has taken note of the documentary evidences produced, I hold that it was not appropriate to enhance the “d” factor for assessment for the period 19-1-2000 to 31-3-2000. The appeal is to be allowed on this short ground. 7. In view of the above, Commissioner’s order in enhancing the value of “d” factor from 158 mm to 197 mm is set aside and appeal to this extent is allowed with consequential relief as per law.
- 2011 (1) TMI 1317 - CESTAT BANGALORE
... ... ..... cleared from the appellants units have reached the SEZ units and re-warehousing certificates were submitted to the authorities. It is also not disputed that the said re-warehousing certificates are genuine, in the absence of any contrary findings, in my considered view, the amount reversed by the appellants on 23-11-2007 by debit in cenvat account cannot be considered as an amount of duty due to the Revenue. If that be so, the refund claim filed by the appellants would squarely fall under the category as enumerated by the Board in their circular dt. 20-1-1997. In my considered view, if an amount which is not payable by the assessee on the merits of the case, then it is an amount which is retained by the Revenue which is not due to the Government. In view of the foregoing, the impugned order is not correct and liable to be set aside and I do so. The impugned order is set aside and the appeal is allowed with consequential relief, if any. (Pronounced and dictated in open court)
- 2011 (1) TMI 1316 - CESTAT NEW DELHI
... ... ..... e purpose of arriving at assessable value. The procedure of provisional assessment is basically for safeguarding the interest of either party i.e. assessee as well as the department in the matter of time limits for initiating recovery proceeding or refund proceeding since some variation in question of turnover discount may arise at the year-end. In this particular case, Revenue has not been able to bring out any case that revenue interest was affected because the party did not follow provisional assessment and the discounts were actually not given. At any rate, not complying with the procedure cannot be a reason to deny a substantial benefit which is already settled by law. In the circumstances, requirement of deposit of duty and penalty is dispensed with and the appeal itself is disposed of holding that there is no merit in the demands confirmed in the order in appeal. Accordingly stay application and appeal are disposed of. (Order dictated and pronounced in the open Court)
- 2011 (1) TMI 1315 - CESTAT BANGALORE
... ... ..... demanded in the impugned order. We also note that in case of similar activities, the Tribunal in Western Refrigeration Pvt. Ltd. v. Commissioner of C.Ex., Vapi 2009 (245) E.L.T. 485 (Tri.-Ahmd.) and Collector of Central Excise v. Indo Asian Fuse Gear Ltd. 1993 (68) E.L.T. 207 (Tri.) had held that Note 6 of Section XVI applied. In the circumstances, we order waiver of pre-deposit of ₹ 2,40,75,746/- and equal amount of penalty imposed on the appellant and stay their recovery pending decision in the appeal. 4. As regards the Cenvat credit of ₹ 28,700/-, we do not find the assessee has made out a prima facie case that it had legally taken the Cenvat credit in accordance with law against proper duty paying documents. However, the impugned order has appropriated an amount of ₹ 10,33,379/-. 5. In the circumstances, we order complete waiver of dues adjudged against the appellants and allow the stay application. (Pronounced in the open court on 25-1-2011)
- 2011 (1) TMI 1312 - CESTAT NEW DELHI
... ... ..... that the imported goods have been used for purposes other than national and international competition. No methodology for use of the imported of fire arms and ammunition has been prescribed to hold that there was such violation. The import has taken place on the specific recommendation of the Ministry of Sports. We have not been shown as to which specific condition of the Notification stands violated. Prima facie, we are not able to agree that the condition of the notification has been violated disentitling them from the benefit the exemption. 5.4 We have also taken into account the submission of the applicant that the applicant is a society registered under the Societies Registration Act which is engaged in upliftment of the sport of shooting in India and that they are in poor financial condition. 6. In view of the above, we waive pre-deposit of dues as per the impugned order and stay recovery thereof till the disposal of the appeal. (Pronounced in the open court)
- 2011 (1) TMI 1311 - CESTAT NEW DELHI
... ... ..... he relevant documents in part II. In the present case, undisputedly the appellants have fulfilled the first part of the formality within the specified time. In other words, receipt of the duty paid goods stands entered in the Cenvat credit account within the specified time limit. Non-mention of the duty amount in part II of the account is apparently a clerical omission and no mala fide is attributable. Infact the assessee was the loser, if at all, as they were entitled to take the credit earlier and utilise the same. 8. In Banner Pharma Caps Pvt. Ltd., the Tribunal has allowed the credit in respect of consignment which was received and entered in part-I Cenvat account within 6 months from the relevant date though the actual credit in Part II was taken belatedly. In view of the above, the denial of credit is not justified. 9. In view of the foregoing, the order of the Commissioner (Appeals) is set aside and the appeal is allowed with consequential relief as per law.
- 2011 (1) TMI 1304 - CESTAT NEW DELHI
... ... ..... that the 90% shortage found was attributable to the officers failing to take note of materials issued for processing. This in the given facts of the case, is clearly an afterthought and does not deserve any consideration. The facts of the case in the decision relied upon by the learned advocate are clearly different from the facts of the present case and therefore, the same have no application to this case and therefore, there is no merit in appeal. 8. However, the submission that the appellants should be extended option to pay reduced penalty under proviso to Section 11AC, as they have paid the duty involved before issue of show cause notice, deserves to be accepted. 9. In the light of the above, the appeal is disposed of as follows - (a) The appeal is rejected. (b) However, the appellant is given an option to pay penalty of ₹ 69,783.75p within 30 days from today. If the amount is not paid within 30 days, the penalty payable shall be ₹ 2,79,135/-.
- 2011 (1) TMI 1233 - CESTAT KOLKATA
... ... ..... tion of Revenue that the appeal is time-bar. 8. emsp On merit we find that the request for common/single registration is accepted by the Revenue with the rider for non-utilization of Cenvat credit for inputs as well as capital goods lying unutilized in the distillery unit for payment of excise duty on sugar. The appellants are aggrieved against this portion of the communication. This order is passed without affording an opportunity of hearing to the appellant therefore the order conveyed through the communication by Joint Commissioner dated 4-8-2006 in respect of the rider for non-utilization of Cenvat credit in the accounts of distillery unit for payment of Central Excise duty on sugar is set aside and this issue is remanded to the Commissioner of Central Excise to decide afresh after affording the opportunity of hearing and after taking into consideration the decision of the Tribunal. The appeal is disposed off as indicated above. (Dictated and pronounced in the open court)
- 2011 (1) TMI 1232 - CESTAT KOLKATA
... ... ..... the basis that unless it is proved that the same is manipulated document, the same is to be accepted. We find in the grounds of appeal that there is no averment that the subsequent Certificate is manipulated document. 6. emsp The Commissioner (Appeals) also held that the demand is time-barred on the ground that the appellants submitted both the Certificates dated 23-6-2000 and the second Certificate dated 10-8-2000 and the differential duty was calculated on the basis of second Certificate and was paid on 13-3-2001 and the show-cause notice was issued on 23-4-2004 alleging suppression with intent to evade without payment of duty. As both the Certificates were submitted in the year, 2000 and the differential duty was also paid in the year, 2001, therefore, we find no infirmity in the impugned order whereby the demand was held to be time-bar. In view of the above discussions, the appeal is dismissed. Cross Objection also disposed off. (Dictated and pronounced in the open Court)
- 2011 (1) TMI 1133 - CESTAT, NEW DELHI
Penalty of short payment of duty - capacity of production based duty - provisional assessment - hed that:- The fact that the differential duty held payable by the provisional determination came down drastically shows that there is no mala fide on the part of the assessee to evade payment of duty. In my considered opinion, short-levy which came to be known consequent to re-determination after 5 to 6 years cannot invite penal provision prescribed under Rule 96ZO. The assessee could not have anticipated short levy arising out of re-determination after 5 to 6 years. There is no valid reason adduced for the inordinate delay in re-determination of duty liability in terms of sub-section (sic) of Section 3A. Under these circumstances, it is a fit case for not sustaining penalties, penalties are set aside and the appeals are allowed
- 2011 (1) TMI 1131 - CESTAT, KOLKATA
Power of Commissioner (Appeals) to remand - As per the amended provision to Section 35A of the Central Excise Act, the power of remand has been withdrawn w.e.f. 11-5-2001 - Commissioner (Appeals) has no power to remand. - since the adjudication order is passed on violation of principle of natural justice matter remanded back to adjudicating authority.
- 2011 (1) TMI 1127 - CESTAT, NEW DELHI
Party to the proceedings - Bank of India is sought to be joined as the party to the proceedings only on the ground that the bond that was executed by the appellants was on Bank of India - Bank of India to whom the notice was issued alongwith the show cause notice to the appellants did not opt to participate under said proceedings before the Adjudicating Authority - Bank of India has not challenged the impugned order, appellants having not disclosed any cause against the Bank of India to join it as the party to this proceedings, the application is rejected
- 2011 (1) TMI 1126 - CESTAT, NEW DELHI
Benefit of exemption denied on various grounds which were not reflected in the Show Cause Notice - SCN discloses that it relate to only one ground namely that the party is not entitled to claim the benefit of Notification No. 6/2006 under Sr. No. 91 thereof retrospectively as the party had already cleared the goods while claiming exemption under Notification No. 108/95 - Merely because it discloses incorrect provision of law while claiming such benefit that could not result in the denial of such benefit to the assessee, application is allowed, amount claimed under the impugned order is waived till disposal of the appeal