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Central Excise - Case Laws

Showing 101 to 120 of 188 Records

• 2014 (10) TMI 374 - CESTAT MUMBAI
  

  Denial of refund claim - Unjust enrichment - Relevant documents not produced - Held that:- Refund claims were rejected on the ground that relevant documents were not produced by the appellant. In that situation, the adjudicating authority would not have considered the issue of bar of unjust enrichment. Therefore, the ground raised by the learned Advocate that they have rejected the refund claim on the new ground is not acceptable. In fact, while considering the refund claim it was found that they are entitled for the refund claim and at this stage the issue of bar of unjust enrichment comes. Therefore, I do not find any force in the argument of the learned A.R. that in the remand proceedings the refund claim has been rejected on the new ground. Further, in the case of Hindalco Industries Ltd. (2006 (2) TMI 337 - CESTAT, MUMBAI), this Tribunal held that in the case of provisional assessment, after following the judgment of the Hon’ble Apex Court in the case of Allied Photographics India Ltd. (2003 (11) TMI 91 - SUPREME COURT OF INDIA) and the decision of Sahakari Khand Udyog Mandal Ltd., bar of unjust enrichment is not applicable. following the decision of Allied Photographics India Ltd. (supra) - Decided in favour of assessee.

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• 2014 (10) TMI 373 - CESTAT NEW DELHI
  

  Penalty under Rule 15 of Cenvat Credit Rules, 2005 - Shortage in stock - Held that:- Rule 15 of Cenvat Credit Rules, 2004. Sub-rule (1) of the said Rule provides imposition of penalty not exceeding the duty on the excisable goods, where a person has taken the Cenvat credit wrongly or in contravention of any provisions of the said Rules. Admittedly, the said sub-rule is not applicable inasmuch as the dispute does not relate to taking of wrong Cenvat credit. Sub-rule (2) of the said Rule relates to the wrong utilisation of the Cenvat credit taken, on account of fraud, wilful statement, collusion or suppression of facts, etc. Admittedly, in the present case, appellants after taking the Cenvat credit on the sponge iron have removed the said goods with a mala fide intend to utilise the credit so taken. In such situation, the provisions of sub-rule (2) would apply. The said sub-rule provides imposition of penalty in terms of provisions of Section 11AC of Central Excise Act, 1944. Section 11AC of the Act provides if the penalty imposed is deposited within a period of 30 days to the extent of 25%, the penalty shall stand reduced to that extent. Inasmuch as in the present case, the appellant has admittedly deposited the duty along with 25% of penalty within the period specified under Section 11AC of the Act, I am of the opinion that this is a fit case for reduction of penalty. penalty is reduced to 25% of the duty demand - Decided partly in favour of assessee.

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• 2014 (10) TMI 372 - CESTAT NEW DELHI
  

  Rectification of mistake - imposition of penalty - Held that:- Revenue’s ROM is to the effect that they had filed an appeal against the original adjudicating authority’s order dropping the demand before the Commissioner (Appeals) and as such the observations of the Tribunal in Para 5 are factually incorrect. We have seen the appeal filed by the Revenue before the Commissioner (Appeals) and find that the said appeal is only in respect of main assessee, i.e., M/s. Narindra Hard Board Industries Pvt. Ltd. Neither the name of Shri N.N. Gupta is appearing as respondent in the said appeal nor is there any separate appeal filed by the Revenue against Shri N.N. Gupta. As such, we find that the observations of the Tribunal in Para 5 are factually correct and no mistake can be said to have been happened. The imposition of penalty on the Managing Director stands correctly set aside. Accordingly, the said part of the ROM is not found favour with and accordingly rejected - Rectification denied.

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• 2014 (10) TMI 369 - CESTAT NEW DELHI
  

  CENVAT Credit - Whether the part of input service credit related to inward transportation of LDO/Coal for generating power in the captive power plant is admissible or not, when entire electricity so generated is not used within the factory of manufacture of the final product but a portion of such electricity is wheeled out/transferred to sister units and others - Held that:- Commissioner failed to quantify the quantum of power not used within the factory. On 10.7.12 similar such case was before the Bench where it was noticed that vague order was passed by the authority on the self same issue in the case of same appellant. If this is the fate of the appellate order today, appeal is bound to be allowed - Decided in favour of assessee.

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• 2014 (10) TMI 340 - CESTAT MUMBAI
  

  Interest demand - Delay in payment of duty - Held that:- It is a settled position in law as laid down by the Hon'ble Apex Court in the case of International Auto Ltd. [2010 (1) TMI 151 - SUPREME COURT OF INDIA], SKF India Ltd. (2009 (7) TMI 6 - SUPREME COURT) that interest liability accrues whenever there is a delay in payment of duty and interest is a compensatory payment. In the case of J.K. Industries Ltd. [2011 (3) TMI 373 - KARNATAKA HIGH COURT] the Hon'ble Karnataka High Court held that the liability to pay interest is not dependent upon whether the payment is made before finalization or after finalization of the provisional assessment. Liability to pay interest would accrue, even in the case of provisional assessment where the short payment of duty was made good before the final assessment order was issued. As regards the reliance placed on the Single Member decision dated 10/03/2004, the Division Bench decision in the case of CEAT Ltd. case was not brought to the notice of the Single Member Bench. In these circumstances, the appellant has not made out any case at all for grant of waiver of pre-deposit. - appellant to deposit entire interest liability - stay denied.

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• 2014 (10) TMI 339 - CESTAT MUMBAI
  

  Clandestine removal of goods - Clearance of sample fragrances without payment of duty - Held that:- Goods were cleared under covering letter mentioning the name of the item, its price, suggested application and dosage, if any, and the reference for submitting those samples. If the goods were not marketable, the question of mentioning a name, its price, application and dosage would not have arisen at all. Therefore, we do not find any merit in the contention that the goods are not marketable. As regards the reliance place on Bayer Diagnostics India Ltd. case [2001 (3) TMI 168 - CEGAT, MUMBAI], the facts of the said case were completely different and distinguishable. In that case, the goods under clearance were diagnostic regent kits and diagnostic reagent strips falling under the purview of Drugs and Cosmetics Act, 1940. Drugs samples were cleared without any packages and therefore, it was held that since there was a statutory requirement of packaging, which has not been complied with, it cannot not be held that the goods are marketable. In the case before us there is no mandatory or statutory requirement of packaging of the goods and therefore, the ratio of the said decision cannot apply.

  We uphold the confirmation of duty demand and consequently, the appellant also would be liable to pay interest on the duty demand confirmed. As regards the penalty imposed on the appellant, Section 11A (2B) provides for non-issue of a show-cause notice in case the duty demand is paid before the issue of show-cause notice. In the present case the appellant has fulfilled this condition and therefore, the question of imposition of penalty under Section 11AC would not arise at all. Accordingly, we set aside the penalty imposed on the appellant - Decided partly in favour of assessee.

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• 2014 (10) TMI 338 - CESTAT MUMBAI
  

  Demand u/s 11D - subsequent upward price revision and the goods were sold from the depot at a higher price - revenue of the view that Since the price at the depot is a cum duty price, it implies that the appellant collected a higher amount of excise duty from the customers; therefore, the demand is sustainable. - Held that:- The liability to discharge duty arises when the goods are cleared from the factory. When the goods cleared and sold through the depot, the law mandates that duty liability has to be discharged on the price prevailing at the depot at the time of clearance of the goods from the factory. There is no dispute in the present case that the appellant has discharged the duty liability in accordance with the law. What happened to the goods subsequently does not influence the assessable value under Section 4 of the Act. This is the view taken by this Tribunal in the case of BPCL case (2002 (5) TMI 107 - CEGAT, COURT NO. III, NEW DELHI) affirmed by the Hon'ble Apex Court - Decided against Revenue.

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• 2014 (10) TMI 337 - CESTAT NEW DELHI
  

  Seizure of goods - Discrepancy in stock - Excess goods found - held that:- 74 ingots were not entered in the RG-1 register Even if 20 ingots are taken to be production of the day of visit of the officer, 54 ingots were in excess then the recorded balance. Normally, in the absence of any evidence to show that non-recording was with mala fide intention to clear the goods clandestinely, confiscation and imposition of higher redemption fine may not be justified. However, in the present case, I find that the appellant were not having sufficient stock of raw material in their records for manufacture of the said unaccounted goods. As such it becomes clear that there was an intention on the part of the assessee to remove the goods clandestinely. Accordingly, I uphold the confiscation of the goods and imposition of penalty on M/s. Kunal Enterprises. Keeping in view the fact that the said seized goods were subsequently released to the appellant and were cleared by them on payment of Central Excise duty, I reduce the redemption fine from ₹ 1,80,000/- to ₹ 75,000/- and penalty from ₹ 1,00,000/- to ₹ 50,000 - decided partly in favour of assessee.

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• 2014 (10) TMI 336 - CESTAT KOLKATA
  

  Waiver of pre-deposit of duty - Classification of goods - classification of “Rexona” under Chapter sub-heading No. 3401.00 or under 3307.30 - Held that:- Issue relates to classification of the goods manufactured by the applicant viz. Lux, Rexona and between two competing sub-headings viz. 3401.10 and 3307.30 of CETA, 1985. It is the claim of the Department that the goods in dispute are classifiable under sub-heading 3307.30 and not as bathing bar as claimed by the appellant under Chapter sub-heading 3401.10. We find this Tribunal in the case of Wipro Ltd. and also in the applicant’s own case discussed in detail the merit of classification of similar products and arrived at a conclusion that the said goods are classifiable under Chapter Heading 3401.10 and not under 3307.30 as claimed by the Revenue - from the record that for subsequent periods following the said decision similar goods had been classified under Chapter sub-heading 3401.90 which had also not been appreciated by the ld. Commissioner even though the said orders were placed before him. Taking into consideration the aforesaid circumstances, we are of the prima facie view at this stage that the applicant’s products are classifiable under Chapter sub-heading 3401.10 as claimed by the applicant. - Stay granted.

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• 2014 (10) TMI 335 - CESTAT CHENNAI
  

  Cenvat Credit - emergence of waste - Exemption under Notification No. 77/86-C.E., dated 14-2-1986 - Held that:- Sludge emerging from effluent treatment plant in the nature of waste cannot be considered a manufactured product in view of various decisions of the Hon’ble Apex Court in the similar matters. Further there cannot be a demand to reverse any Cenvat credit for the reason that a part of the input is covered in the waste that arises. Following decision of ITC LTD Versus COMMISSIONER OF CENTRAL EXCISE, SALEM [2013 (12) TMI 928 - CESTAT CHENNAI] - Decided in favour of assessee.

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• 2014 (10) TMI 334 - CESTAT BANGALORE
  

  Condonation of delay - appeals have been rejected on the ground that they were filed beyond the period which could not have been condoned by the Commissioner (Appeals) and the Order-in-Original was passed on 7-3-2006 and was sent to the addresses of the factory as in the show cause notice. The learned counsel submitted that the factory was closed even at the time of investigation taken up by the Revenue in 2003 - Held that:- once the Department knew that the addresses for correspondence was different and not the factory and having sent the intimation for final hearing to such addresses, the order also should have been sent to the same addresses to ensure delivery - According to Section 37C of Central Excise Act, 1944 (the Act), the service would be complete if the same is sent by registered post with acknowledgement due to the person for whom it is intended. Sending to a wrong address is definitely not covered by Section 37C of the Act. when the order cannot be served by registered post with acknowledgment due or by tendering the decision directly, other options would be available. Since the adjudicating authority knew the addresses for correspondence as it emerges from the notice for final hearing, there is no need for sending the order to a different address - Matter remanded back - Decided in favour of assessee.

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• 2014 (10) TMI 306 - CESTAT NEW DELHI
  

  Cenvat Credit - Input services - general insurance services - Held that:- Insurance premium on vehicles owned by them either for transportation their employees or for transportation of goods which was an integral part of business of appellant firm and input service credit will be available. Accordingly service tax paid on insurance premium of such vehicles was a ‘input service’ as defined under rule 2(i) of Cenvat Credit Rules, 2004. Considering the facts on the matter in its broader contour, Input service credit will be available on insurance of vehicles.

  Necessary documentary evidence and other factual information has not been provided by the appellants. Without proper information/documents, it is not possible to decide the matter at this end. Both sides agree that justice will be met, if matter is remanded back to original adjudicating authority to re-examine the matter. For this, both sides are directed to provide necessary documents/information to the adjudicating authority. So that matter is examined afresh to consider eligibility of input service credit on services other than vehicle insurance - Matter remanded back - Decided in favour of assessee.

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• 2014 (10) TMI 305 - CESTAT CHENNAI
  

  Waiver of pre-deposit of duty - Notification No.4/2006-CE, dated 01.03.2006 as amended by Notification No.10/2010-C.E., dated 27.10.2010 - Concessional rate of duty - Held that:- vide Circular No.60/95, dated 4th June, 1995 and Circular No.9/96-Cus., date 313.02.1996, it has been clarified that the benefit of exemption will be available to goods where the goods are squarely covered by the description even though the goods mentioned in the notification are not covered by the Chapter/Heading Nos./Sub-heading Nos. mentioned in the notification or if the Heading No. indicated against the description is ‘incorrect’. Board has clarified that the benefit of Notification would be extended on the basis of the description of the goods as mentioned in the Notification even though the goods mentioned in the Notification are not covered by Chapter/Heading Nos. mentioned in the notification. Prima facie, we find that in this case amended Notification No.4/2011-CE (supra) extended benefit of concessional rate of duty to the impugned goods, and the Boards clarification would not help the case of the applicant - Assessee directed to make pre deposit - Partial stay granted.

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• 2014 (10) TMI 304 - CESTAT MUMBAI
  

  Condonation of delay - Inordinate delay of 439 days - reason adduced for this delay is that the authorized representative of the appellant company, was unwell and was advised bed rest due to hyper tension with diabetics mellitus with infected wound in right foot with cellulites due to gangrene and was immobile - held that:- it is not the length of the delay but the adequacy of the explanation that should be considered for condonation of delay. In the present case, the only ground adduced by the appellant is that Shri Jagdish Sharma was sick and he was advised bed rest due to hyper tension with diabetics mellitus and was immobile. This is no explanation as to why the Directors who were looking after the affairs of the company could not have filed the appeal. Further it is on record that Shri Jagdish Sharma, attended the personal hearings before the excise authorities in October, 2013. In these circumstances, the argument of the appellant that because of Shri Jagdish Sharma's illness, there was a delay in filing the appeal is not convincing. The Hon'ble Apex Court in the case of Balkrishnan Vs. Krishna Murthy - [1998 (9) TMI 602 - SUPREME COURT OF INDIA] had held that it is the adequacy of the explanation that matters and not the length of delay. The Hon'ble Apex Court held that "condonation of delay is a matter of discretion length of the delay is no matter, acceptability of the explanation is the only criterion" - condonation denied.

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• 2014 (10) TMI 303 - CESTAT BANGALORE
  

  CENVAT Credit - Appellant has utilized Cenvat credit which should have been paid in cash - Held that:- Appellant could not deposit the amount in cash. According to learned counsel, this happened because the customers did not pay the dues for goods received by them. I find that this Tribunal in the case of Meenakshi Associates v. Commissioner of C.E., Noida [2012 (6) TMI 275 - CESTAT, NEW DELHI], has taken a view that instead of depositing entire amount of Cenvat credit utilized in cash, if the assessee deposited the interest, that can be taken as compliance of requirement of Rule 8(3A) of Central Excise Rules and it can be accepted since the amount is paid in cash and immediately the same can be taken as Cenvat credit and therefore, the exercise is revenue neutral. In this case, since the interest has been deposited, the obligation as decided by this Tribunal in the case of Meenakshi Associates (supra) has been fulfilled and therefore, question to be decided is only relating to penalty. As far as the penalty is concerned, the appellant has already deposited an amount of ₹ 1,00,000/-. In my opinion, having regard to the quantum of default and assessee’s conduct, the penalty already paid is sufficient to meet ends of justice - Decided partly in favour of assessee.

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• 2014 (10) TMI 302 - CESTAT NEW DELHI
  

  Strictures against Government - Casual approach towards litigation - Held that:- It is high time for Revenue to rise to the occasion and reduce its litigation without burdening the Tribunal to list the matters frequently in cause list to know status of compliance to stay orders. Aforesaid scenario exhibits laxity of the Commissioners to pursue the litigations before the High Courts. Therefore we direct the Registrar to send a copy of this order expeditiously to the Revenue Secretary, Ministry of Finance for appropriate action so that Revenue shall be litigation free and its blocked Revenue shall be realised as early as possible.

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• 2014 (10) TMI 301 - CESTAT MUMBAI
  

  Recovery of Central Excise duty - Addition of transportation charges to the assessable value - Board’s circular No. 643/34/2002-C.X., dated 1-7-2002 - Held that:- Commissioner (Appeals) in the impugned order gave a finding of fact that the transportation charges are separately shown in the invoice. Further we find that there is no evidence on record that the value of the goods is suppressed to the extent the amount of freight is shown. In the absence of such evidence, we find no infirmity in the impugned order - Decided against Revenue.

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• 2014 (10) TMI 300 - CESTAT BANGALORE
  

  Restoration of appeals - Appeal dismissed for bar of limitation - Held that:- When a final order has been passed on merits, unless there is an error apparent from the order, the same cannot be modified or reviewed. In this case even though the appellant was not represented, the order has been passed on merits. The submissions made by the appellants in the appeal memorandum and the papers have been taken into account. If the appellant did not file affidavit of the consultant and did not file the affidavit of the Director by that time and if the same is submitted now it would only mean that the defects or omissions on the part of the appellant have been made good subsequently. This cannot be considered as an error on the part of the Tribunal at the time of passing the order. I cannot go into the merits of the case for the appellant in seeking condonation of delay when there is no error apparent from the order passed by the Tribunal. Any such order that may be passed would amount a review of the order passed by the very same Tribunal which is clearly the Tribunal is not empowered to do - Restoration denied.

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• 2014 (10) TMI 277 - CESTAT MUMBAI
  

  100% EOU - DTA clearance - Education Cess taken into account while computing the CVD element of the customs duty - cess again included in the aggregate of the customs duty - Held that:- Issue involved in the present appeal is identical to that considered by the Larger Bench in the Kumaran Arch Tech Pvt. Ltd. case (2013 (4) TMI 482 - CESTAT NEW DELHI). Therefore, the ratio of the said decision would squarely apply. Accordingly, we hold that there is no need to include the cess again on the Excise duty equal to the aggregate of the Customs duty and, therefore, the impugned demands are not sustainable in law. Accordingly, we set aside the impugned order and allow the appeal with consequential relief, if any, in accordance with law - Decided in favour of assessee.

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• 2014 (10) TMI 276 - CESTAT MUMBAI
  

  Whether use of power in handling raw materials would disentitle them of the duty exemption given to non-power operated units vide Notification No. 28/96-CE dated 11/09/1996. - Held that:- Appellant is liable to discharge the duty demand confirmed along with interest thereon and we hold accordingly. As regards the penalty of ₹ 10,63,645/-, at the material time, there was an order in favour of the appellant by this Tribunal and therefore the appellant could not have been alleged to have indulged in suppression of facts. Therefore, imposition of penalty is not warranted. Since the issue relates to interpretation of law in respect of an exemption notification, we set aside the penalty imposed on the appellant. Following decision of assessee's own previous case [2011 (7) TMI 26 - SUPREME COURT OF INDIA] - Decided partly in favour of assessee.

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