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Central Excise - Case Laws
Showing 161 to 180 of 260 Records
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2012 (12) TMI 432 - CESTAT, NEW DELHI
Search - goods seized and provisionally released on payment of redemption fine and duty - alleged that there was an attempt to remove the finished goods without payment of duty since goods were found in the factory itself – Held that:- Revenue could not discard plea of appellant discovering any material evidence against appellant’s plea of job work and manufacture of the day – assessee submitted that finished goods came from job worker on Friday and goods manufactured on the same day remained unaccounted for two days because of Saturday and Sunday and accounting staff were absent - appellants claiming to have paid the duty, there shall be no further levy of duty on the goods seized because seizure was also unwarranted when the goods were not found to be without evidence, nor evidence exist to hold attempt to clear excisable goods causing evasion of duty. Therefore, confiscation was unwarranted and redemption fine was not imposable.
Penalty – evasion – Held that:- No evasion since the allegation failed to stand. But violation of law occurred for not recording the goods on Friday which calls for levy of penalty - penalty of Rs. 5,000/- shall be appropriate under Rule 27 of Central Excise Rules, 2002. Except this penalty, no other penalty shall sustain
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2012 (12) TMI 431 - CESTAT, NEW DELHI
Cash refund - accumulated Cenvat credit – goods supplied to other 100% EOUs or supplied to DMRC by availing full duty exemption under Notification No. 6/2006-C.E. – Held that:- Cash refund of accumulated Cenvat credit is subject to condition that the manufacturer/provider of output service does not avail the input duty drawback or input duty rebate - Rule 5 is applicable only in respect of the use of Cenvat credit availed inputs or input services for manufacture of the goods which are cleared for export under bond/letter of undertaking or are used in the manufacture of intermediate product cleared for export - supplies to SEZ are to be treated as export for the purpose of this Rule in terms of the provisions of Section 2(m) of SEZ Act, 2005, the supplies to DMRC by availing Notification No. 6/2006-C.E. which though deemed exports in terms of the provisions of EXIM policy, cannot be treated as export for the purpose of Rule 5 of Cenvat Credit Rules, 2004 - provisions of this Rule are not applicable in respect of accumulated Cenvat credit on account of supplies to DMRC by availing full duty exemption under Notification No. 6/2006-C.E. - no evidence that the goods have been used by those EOUs in manufacture of finished product which were exported out of India under bond - appeal is dismissed.
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2012 (12) TMI 430 - CESTAT, AHMEDABAD
Penalty – alleged that appellant neglected the obligations cast on him under Rules and Law and on this ground penalty under Section 11AC has been imposed – Held that:- No suppression of facts or misdeclaration has been clearly brought out for imposing penalty under Section 11AC - contravention of some statutory provision relating to accounting for the goods, furnishing the proof of export and re-warehousing certificates etc. and it is definitely not a case where duty is required to be demanded since the goods have been accounted for and exported, the question of demand of duty does not arise - there is no proposal in the show cause notice to impose penalty for contravention of rules and proposal is for imposing penalty under Section 11AC of the Central Excise Act, 1944 only - penalty under Section 11AC of the Central Excise Act, 1944 also cannot be sustained
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2012 (12) TMI 429 - CESTAT, NEW DELHI
Refund – unjust enrichment – Held that:- Appellant have produced evidence in form of letters from M/s. BSL refusing to pay the 15% excess duty, accompanied by Chartered Accountant’s certificate in support of their claim that the incidence of duty whose refund is claimed has been borne by them and that duty has not been recovered from their customer - department’s plea is that the appellant have not produced any documents in support of their claim that the incidence of the excess duty paid, whose refund is claimed, had been borne by them - matter is remanded to the original adjudicating authority for de novo adjudication
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2012 (12) TMI 428 - CESTAT, NEW DELHI
Rectification of mistake - held that:- the point of dispute is eligibility of Cenvat credit of duty paid on rough tiles i.e. rough aluminium die cast tiles which were subjected to the process of cleaning, buffing, electroplating etc. In the final order, after holding that these processes do not amount to manufacture, it has been held that Cenvat credit is not admissible. Thus on the basic issue involved in this case i.e. whether the appellant’s processes on rough tiles amount to manufacture there is no scope for rectification and the question of admissibility of Cenvat credit is linked with this question only.
The alternative plea which had been made and not considered, is that even if the appellant’s process does not amount to manufacture, Cenvat credit of duty on rough tiles must be allowed by quashing the impugned order of CCE (Appeals), as the amount of Cenvat credit of duty on rough tiles which has been denied is the same as the rebate of duty on rough tiles to which the appellant would be entitled under Rule 18 of Central Excise Rules, 2002, as the processed tiles had been exported. This plea, in our view is not relevant to the issue involved in this case - admissibility of Cenvat credit of duty paid on rough tiles, as for the reasons given below, considering or not considering this plea will have not bearing on the final decision.
f according to the appellant a contrary view is possible on this issue, the point raised would not satisfy the criteria for treating the same as “mistake apparent from records” - Misc. application rejected.
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2012 (12) TMI 427 - CESTAT, NEW DELHI
Condonation of Delay of 812 days in filing appeal - Held that:- Cause for delay as explained by assessee that there was lack of communication between the authorized representative of the appellant and concerned legal and tax department of the appellant is vague plea without detailing the facts not explaining a reasonable cause for delay in filing the appeal.
As in December, 2010, the Director of the appellant was arrested and under the term of arrest deposited the interest and penalty. The appellant did not prefer to file the appeal and ultimately in May, 2011, filed the writ petition in the High Court claiming against 100% penalty. There is no explanation as to why the appeal was not filed during the period with effect from December, 2010 to May, 2011. Therefore, the appellant was grossly negligent in pursuing the remedy available to him and has miserably failed to explain sufficient cause for condonation of delay of 812 days in filing the appeal - against the assessee.
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2012 (12) TMI 426 - CESTAT, NEW DELHI
Demand of duty - Period of limitation - imposition of penalty on the appellant under Section 11AC – alleged that assessee have been clearing zinc dross and ash without payment of duty, but the same has not been shown in the ER-I Returns of the respective months – Held that:- When the appellant had declared the clearances of zinc dross and ash in the monthly ER-6 returns regarding Cenvat credit taken and utilized they can not be accused of having suppressed the fact regarding manufacture and sale of zinc dross & ash from the department, even if the production and sale of zinc dross/ash was not mentioned in the ER-I Returns - extended period cannot be applied for the recovery of non-duty paid and only the normal period of limitation would be applicable - penalty under Section 11AC since the criteria for invoking extended period under proviso to Section 11A(1) is identical to the criteria for imposition of equal penalty under Section 11AC and since extended period is not applicable, there would be no justification for imposition of penalty on the appellant under Section 11AC - duty demand would survive only for the normal limitation period.
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2012 (12) TMI 390 - CESTAT KOLKATA
Application for modification of Stay Order - stay/dispensation of pre-deposit - In the present case on the application filed by the respondent, a direction was given to deposit only 25% of the amount of the penalty which had been imposed against the said respondent - Applicants claimed that they did not receive the notice - matter was got verified and ascertained from the registry that the notice was duly sent to the address stated on the fact of the Appeal Memoranda - Applicant Firm has not paid a single paisa till date - Tribunal after having exercised jurisdiction for the purposes of passing an order for waiver of pre-deposit u/s 35F of the Act cannot modify that order subsequently like an appellate authority, nor can keep tinkering with the order as and when applications for modification of the order are filed - Appeals are dismissed for non-compliance with the provisions of Section 35F of the Central Excise Act, 1944.
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2012 (12) TMI 389 - CESTAT, NEW DELHI
Service of show cause notice - Benefit of concessional rate of duty claimed under Notification No. 25/97-C.E. dated 7-5-1997 - Demand of Duty with Interest – Held that:- There is nothing in the order-in-original or the record to show as to what proceedings took place pursuant to the show cause notice before the filing of written submissions by the assessee on 22-7-2005. Had the plea of the appellant, that show cause notice was served on the respondent in the year 1998, been correct there ought to have been some proceedings conducted during the period upto 22-7-2005. The order-in-original do not give any clue in this regard. Therefore, in absence of any evidence regarding service of show cause notice on the respondent prior to 22-7-2005, the impugned order of Commissioner (Appeals) holding the show cause notice to be time barred cannot be faulted.
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2012 (12) TMI 388 - CESTAT, BANGALORE
CENVAT credit on various services - input services - use for the purpose of manufacturing - held that:- CENVAT credit on pest control allowed - Cenvat Credit on AMC for ST plant for sewage disposal allowed - AMC for air conditioners for instrumentation room allowed since there is a nexus between the said service and the manufacture of excisable products by the appellant inasmuch as testing of the products in the factory is an imperative requirement pre-clearance. - Cenvat Credit on canteen facility denied since the appellant admittedly did not have 250 or more employees/workers during the material period.
Cenvat Credit on AMC for computers - certain part of the CENVAT credit taken on AMC for computers was reversed by the appellant accepting the fact that this much credit was not used in connection with manufacture or clearance of their products. - for the remaining part, credit allowed.
CENVAT credit on Air travel agent’s service - claim of the appellant is that their employees had to travel extensively in connection with the business of the appellant – Held that:- There is no documentary evidence to show that the air travels made by the employees were in connection with the business of manufacturing and marketing of excisable products and not as part of any welfare scheme for the employees - challenge against denial of CENVAT credit on air travel agent’s service fails
Online auction service - appellant submit that they used this service for disposal, by auction, of scrap which was generated in the course of manufacture of their final products. It is submitted that the scrap was also cleared on payment of duty. If that be so, online auction resorted to by the appellant is an input service used for clearance of excisable goods. A direct nexus stands established between online auction service and the clearance of excisable goods - credit allowed.
Penalty - appellant has also challenged the penalties imposed on them under Rule 15 read with Section 11AC of the Central Excise Act. After hearing both sides on this issue, I take the view that the penalty-related issue requires to be addressed by the original authority, now that the appeals have been partly allowed. That authority is directed to take fresh decision on the question whether any penalty is liable to be imposed on the party under the aforesaid provisions – matter remanded back
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2012 (12) TMI 387 - CESTAT, NEW DELHI
Restoration of appeal – determination of annual production capacity – Held that:- the finding of the Tribunal’s Final Order No. 812/2010-EX, dated 17-8-2010 that the Commissioner’s order determining the annual production capacity of the Appellant’s factory was not challenged by them in the manner known to the law is factually incorrect. - In fact, it appears that this matter is pending before the Apex Court in SLP No. 22134/2008 filed by the Appellant. - ROA is allowed
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2012 (12) TMI 386 - CESTAT, NEW DELHI
Remission of excise duty - fire incident - loss of finished as well as semi-finished goods lying in store – Held that:- There is nothing on record to suggest that there was any material available with the Commissioner (Adjudication) to come to the conclusion that the appellant was not following the safety norms - appellant has filed insurance claim without including the duty element - appellant has placed sufficient material on record to show that finished/semi-finished goods were destroyed in fire accident cause due to short circuit - appellant is granted remission of excise duty pertaining to the goods destroyed in fire
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2012 (12) TMI 385 - CESTAT, BANGALORE
Waiver of pre-deposit - demanded as interest and penalty – Held that:- Interest liability in this case is relatable to the transfer of credit of education cess effected by the appellant to make it a credit of basic excise duty. True, the taking of credit of education cess in the past was not irregular. But, when it was transferred to the credit column relating to basic excise duty, it turned out to be a case of irregular taking of basic excise duty in the CENVAT account and that credit was reversed only in August 2009 - Rule 14 of the CENVAT Credit Rules, 2004 is squarely applicable - appellant has not pleaded financial hardships. In the circumstances, there will be a direction to them to pre-deposit
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2012 (12) TMI 383 - CESTAT, KOLKATA
Benefit of Notification 6/2006 - applicant supplied the TMT bars to Thermal Power Project, an inter-state thermal power plant which qualifies as mega power project at nil rate of duty by availing the benefit of Notification 6/2006 – alleged that the goods are classifiable under chapter 72 and not under Chapter Heading 9801 for which the benefit of Notification No. 21/2002 is available – Held that:- Goods imported for mega power project plant to be erected by BHEL is eligible for exemption from payment of duty - Appellants supplied the goods to bidders of International Competitive Bidding, the condition of the Notification is satisfied and there is no justification for denying the exemption notification to the appellant - waiver of pre-deposit allowed
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2012 (12) TMI 382 - CESTAT, NEW DELHI
Cenvat credit denied - Capital goods removed after use – Held that:- The capital goods i.e. D.G. Sets and Water Heat Recovery Equipment were disposed of in the market after putting them to use for a period of 9-10 years. Thus, it cannot be said that dispute of capital goods on transaction value would be covered under the expression “removed as such” so as to attract the reversal of Cenvat credit availed under Rule 3(4)(c) or Rule 3(5) of Cenvat Credit Rules.
As decided in Commissioner of Central Excise, Chandigarh v. Raghav Alloys Ltd. [2010 (4) TMI 294 - PUNJAB & HARYANA HIGH COURT] removal of capital goods on which the Cenvat credit was availed after use on payment of excise duty on transaction value would not attract Rule 3(5) of the Cenvat Credit Rules, 2004.
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2012 (12) TMI 381 - CESTAT, NEW DELHI
Denial of Cenvat credit – alleged that the invoices are in the name of M/s. United Alkalies, Ghaziabad, although these invoices also bear the name & address of the appellants as consignee – Held that:- Credit in respect of the said invoices could not be denied on such ground of the alleged non-submission of documentary/duplicate copy of the invoices, particularly in the face of the said facts and documentary/corroboratory evidence - credit was allowed by the appellate authority after verification of the documents in terms of the observation made by the Tribunal in the earlier order while remanding the matter - substantive benefit cannot be denied on procedural/hypertechnical objection - Revenue’s appeal rejected.
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2012 (12) TMI 380 - CESTAT, NEW DELHI
Abatement of duty in terms of the proviso 1 of Rule 10 of the Pan Masala Packing Machines (Capacity of Determination and Collection of Duty) Rules, 2008 - Rule provides abatement in case a factory did not produce the notified goods during continuous period of 15 days or more - which point of time the counting of day start – Held that:- A day is a unit of time equivalent to approximately 24 hours - closure was for a period of 15 days - Revenue in support of their plea that the day should start from 00.00 hours at night has not placed any support or any material so as to justify their stand. Admittedly the closure was for continuous period of 15 days (by taking a day of 24 hours) and no infirmity can be found in the views adopted by Commissioner (Appeals). Revenue’s appeals are accordingly rejected
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2012 (12) TMI 350 - CESTAT, MUMBAI
Extended Period of limitation invoked - appellant cleared the goods claiming the benefit of exemption notification no 64/95-CE dt. 16.3.1995 - Held that:- There is no evidence on record to show that the certificate is procured by the applicant from the Indian Navy by wrong representation or mis-representation as no investigation was conducted by the Revenue from the authority who issued the certificates to the appellant.
The applicant also filed a necessary declaration under Rule 173B of the Central Excise Rules, 1944 in respect of the goods in question by claiming the benefit of Notification No. 64/95-CE. Copy of such declaration dt. 25 th September 1997 is produced by the applicant during the arguments. As the revenue was aware that goods in question have been cleared to M/s Mazgaon Dock Ltd. by claiming the benefit of notification, hence, the allegation of suppression with intent to evade payment of duty is not sustainable in the present case - in favour of assessee.
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2012 (12) TMI 349 - CESTAT, MUMBAI
Extended period of limitation invoked - Evasion of Payment of Duty - appellant contended against demand as whole excise is revenue neutral - Held that:- As that one unit is clearing waste and scrap generated during manufacture of final products to the independent buyers at a higher price and to the other unit at a lower price. The fact of clearing waste and scrap to the other unit at a lower price was not disclosed to the Revenue. In these circumstances, it cannot be said that the appellants were not aware of the fact that the duty is to be paid on the same assessable value at which the goods are being cleared to the independent buyers.
There is no evidence to show that the appellants were under the reasonable belief that they were not required to disclose the fact of clearance of waste and scrap to the other unit at lower price - extended period of limitation is available to the Revenue - in favour of Revenue.
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2012 (12) TMI 348 - CESTAT, NEW DELHI
MRP - provisions of Rule 4A - sales to dealers – Held that:- Period of demand is from 1-6-2006 to 31-10-2010, Rule 17 and Rule 2(j) of SWM Rules were deleted w.e.f. 31-1-2007 by GSR 425(E) - for the period w.e.f. 31-1-2007, the Commissioner’s findings that the goods sold to the dealers being multi-piece packages, there were requirement to affix MRP on the packages, would not be correct - period prior to 31-1-2007 when Rule 17 read with Rule 2(j) of the SWM Rules were there, the goods being cleared do not appear to be covered by the definition of ‘multi-piece packages’, as it is not the department’s case that each piece was individually packed in retail sale - no evidence that these boxes containing 100 pieces were meant for retail sale, there is no evidence that pieces of fasteners were individually packaged or labelled for retail sale - even prior to 31-1-2000, there was no requirement to affix MRP on the packages in which the goods were being sold to dealers and hence, the provisions of Rule 4A were not applicable - provisions of Rule 4A would not have been applicable if each individual piece was individually packed for retail sale and two or more of such individually pieces were further packaged in bigger boxes, which were also intended for retail sale – in favor of assessee
In respect of the clearances to Spare Parts Division of Automobile manufacturers – Held that:- Provisions of Rule 4A would be applicable and the duty would be liable to be paid on the assessable value determined on the basis of MRP declared under the Provisions of Section 4A and in respect of these clearances, the dispute is only on the point as to whether in respect of such clearances of Spare Parts Division of Automobile manufacturers, the duty has been paid on the value determined under Section 4A - Appellant directed to make pre-deposit
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