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Central Excise - Case Laws

Showing 161 to 180 of 388 Records

• 2013 (12) TMI 976 - CESTAT AHMEDABAD
  

  Admissibility of Refund – Documents produced not considered – Held that:- It was required to be established by the appellant with the help of contract copies and other documents that the duty paid by them was in excess of what was required to be paid - it was also obligatory on the part of the appellant to establish that the excess duty paid on the invoices in fact has not been recovered from the customer or that the excess duty paid by the appellant on the invoices was not paid to them by buyer of the goods – Thus, C.A. certificates and relevant documents are required to be produced before the original adjudicating authority to establish, that excess duty has been paid by the appellant and also to establish that excess duty paid has not been recovered from the customer - these documentary evidence/details were not furnished before the original adjudicating authority, therefore, it is required that the matter is remanded back to the original adjudicating authority to decide the case in denovo proceedings by giving a personal hearing to the appellant to explain their case – Matter remitted back – Decided in favour of Assessee.

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• 2013 (12) TMI 934 - PUNJAB & HARYANA HIGH COURT
  

  Order of pre-deposit of 25 % of the duty challenged - Percentage of burning loss claimed by the appellant rejected – Held that:- in another matter Commissioner (Appeals), Customs and Central Excise observed that, burning loss of 4.92% is within the norms of 2 to 6-7% prescribed by the National Institute of Secondary Technology - thus, the Tribunal may be directed to reconsider the appellant's prayer for waiver of the condition of pre-deposit - the wastage and burning loss claimed by the appellant is in the permissible limit and demand of duty raised in the impugned order is not sustainable – thus, imposition of interest and penalty is irrelevant – order set aside and the matter remitted back to the CESTAT to consider the application for pre-deposit – Decided in favour of Appellant.

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• 2013 (12) TMI 933 - CESTAT AHMEDABAD
  

  Inclusion of value of deemed export - Whether value of deemed export is required to be excluded while determining FOB value of export for the purpose of computation of value of the Exim Policy – Following M/s. Amitex Silk Mills P. Ltd. vs. CCE, Surat-II-I [2007 (7) TMI 279 - CESTAT, AHMEDABAD] - the value of deemed export should be included while determining the FOB value of export – Decided against Revenue.

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• 2013 (12) TMI 932 - CESTAT AHMEDABAD
  

  Cenvat credit availed on the basis of Xerox copies of the bills of entry - Original duty paying documents not made available by the appellants – Held that:- No efforts were made by the appellants to approach Jurisdictional Officer for necessary certification regarding duty paid nature of inputs - original bills and entry were never available with the appellants and that is why straightway after receipt of show cause notice they started justifying their claim on the lines of receipt and utilization of inputs in the manufacturer of finished goods - immediately on receipt of show cause notice the appellant should have come forward with the original copies of bills and entry to justify that cenvat credit was properly taken.

  Copy of FIR only talks about the fire in the factory and not about the loss of the concern bills of entries - Because no such discussion is coming out from the order in original that appellant has claimed the originals to have been lost in a fire - The fire, if any must have broken out only after adjudication proceedings got completed - the contention of the appellants that the original bills and entry were destroyed in the fire and were not available, is not acceptable - original documents for taking Cenvat Credit were never available with them and cenvat credit cannot be taken on the strength of Xerox copies of bills of entry under Rule 9 (1) of the Cenvat Credit Rules - the cenvat credit has been correctly denied to the appellant and penalty has been correctly imposed by Commissioner (A) – Decided against Assessee.

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• 2013 (12) TMI 931 - CESTAT NEW DELHI
  

  Excess goods not clandestine removal – Clerical mistake - Held that:- There is clear finding by the Commissioner (Appeals) that excess found goods were not meant for clandestine removal and it was only a case of clerical mistake on the part of the appellants – Following CCE, Chandigarh vs. Sadashiv Ispat Ltd.[2010 (1) TMI 500 - PUNJAB & HARYANA HIGH COURT] - non accountal of the goods, which are not meant for clandestine removal would not attract penal provisions, inasmuch as mens rea for imposition of penalty is required – the confiscation of the goods or imposition of penalty is not justified –Decided in favour of Assessee.

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• 2013 (12) TMI 930 - CESTAT CHENNAI
  

  Time-barred appeal - Branded Chewing Tobacco cleared in the guise of unbranded Chewing Tobacco without payment of duty – Held that:- The Adjudicating authority also observed that the adjudication proceeding was initiated only on the basis of documents available with the department and copies of which have been supplied to the department - the appellant wilfully protracted the proceeding on one pretext or the other - after the de novo adjudication order was passed, the appellants did not approach to the Commissioner (Appeals) as provided under Section 35(1) of the Act - The de novo Adjudication indicates that any person remain himself aggrieved by the order may appeal against the same to the Commissioner (Appeals) - the Tribunal has not given any observation on condonation of delay of filing of appeals before the Commissioner (Appeals).

  Following Singh Enterprises Vs Commissioner of Central Excise, Jamshedpur [2007 (12) TMI 11 - SUPREME COURT OF INDIA] - Commissioner (Appeals) has no power to condone the appeal beyond the stipulated period - The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only upto 30 days after the expiry of 60 days which is the normal period for preferring appeal - there is complete exclusion of Section 5 of the Limitation Act - the appeals were filed beyond the stipulated period under proviso to Section 35(1) of the Act, 1944 – Decided against Assessee.

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• 2013 (12) TMI 929 - CESTAT CHENNAI
  

  Denial of cenvat credit - Goods can be considered as capital goods or not under Rule 2(a) of the CENVAT Credit Rules, 2004 – Waiver of Pre-deposit – Held that:- The matter is highly controversial and actual use of the goods and its nexus with manufacturing activity are very relevant for deciding the issue - On this aspect of the matter, the findings are vague because the lower authorities have concentrated on the type of articles used not its actual use – Following Saraswati Sugar Mills Vs Commissioner of Central Excise, Delhi-III [2011 (8) TMI 4 - SUPREME COURT OF INDIA ] - the applicants are directed to make a pre-deposit of Rupees Fifteen Lakhs as pre-deposit – upon such submission rest of the duty to be stayed till the disposal – Partial stay granted.

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• 2013 (12) TMI 928 - CESTAT CHENNAI
  

  Sludge emerged during the process of manufacture - Whether in terms of Rule 6(3)(i), an amount equal to 10%/5% would be payable – Held that:- The goods are definitely in the nature of ‘by-product' and ‘waste' – Following Rallies India Ltd. Vs Union of India [2008 (12) TMI 46 - HIGH COURT BOMBAY] - when common inputs are used in the manufacture of dutiable and exempted products, the liability to pay the amount of 8% as it was applicable at the relevant time would arise only for final products and not for 'waste'.

  The Board's Circular No.345/61-97-CX, to the effect that there should be no denial of credit even if a part of an inputs is contained in scrap, waste, residue etc., notwithstanding the fact that the erstwhile Rule 57D is no longer in force – further in the CBEC's Central Excise Manual, states that CENVAT credit is also admissible respect of amounts of inputs contained in any of the waste, residue or by-product - the basic idea is that CENVAT credit is admissible so long as the inputs are used in or in relation to the manufacture of final products – thus, the 'sludge' is in the nature of by-product or waste and demand of amount of 10% on the value of the 'sludge' under Rule 6(1)(i) of the said Rules 2004 is not sustainable – Decided in favour of Assessee.

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• 2013 (12) TMI 927 - CESTAT CHENNAI
  

  Adoption of cost construction method - Waiver of Pre-deposit – Held that:- The Tribunal already settled the issue for the clearances made to their sister units are liable to be assessed by following comparable goods - The applicants have failed to make out a prima facie case for total waiver – the applicant has already deposited a sum of Rs.10 lakhs - the applicants directed to deposit a further sum of Rupees twenty lakhs as pre-deposit – upon such submission rest of the duty to be stayed till the disposal – Partial stay granted.

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• 2013 (12) TMI 926 - CESTAT CHENNAI
  

  Denial of Credit – Capital goods not installed on registered factory premises - Whether the jetty and the pipelines that connect the factory on shore would be treated as an integral part of the factory or not – Held that:- The 'pipelines' are owned by the applicant and further, the applicant obtained the licence from the Port authorities for use of the jetty to transport their raw material through pipelines to their factory on shore - the applicant is directed to deposit Rupees Ten lakhs as pre-deposit – upon such submission rest of the duty to be stayed till the disposal – Partial stay granted.

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• 2013 (12) TMI 925 - CESTAT NEW DELHI
  

  Eligibility for cenvat credit - Sweet on paste used to reduce the abrasion of machinery – Held that:- The use of SOP has to be treated as in or in relation manufacture of final product Singh Alloys & Steel Ltd. v. Assistant Collector of Central Excise [1993 (1) TMI 97 - HIGH COURT AT CALCUTTA] - Dolopatch mix, magnesite peas and ramming mass used in the course of manufacture of steel ingots to prevent damage to the refractory lining of the furnace are eligible for input and that the definition of input is not depended upon what ought to be used but what is in fact used or what is commercially expedient to use - though in theory the manufacture of cement is possible without the use of SOP, but it is not disputed that the use of SOP reduces the obsession and thereby enhances the productivity – thus, the SOP has to be treated as an input and hence would be eligible for Cenvat credit – Decided in favour of Assessee.

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• 2013 (12) TMI 924 - CESTAT NEW DELHI
  

  Maintainability of Petition – Held that:- Section 35F is applicable only in respect of appeals against the decisions relating to duty demanded and penalty levied – the present case is the appeal filed against the Commissioner (Appeals)’s order are in respect of Merchant Overtime, not duty, the provisions of 35F are not applicable - Both the stay application dismissed as infructuous – Decided against Assessee.

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• 2013 (12) TMI 880 - MADHYA PRADESH HIGH COURT
  

  Maintainability of demand u/s 11D of Excise Act – Payment collected on increased price but accordingly duty not paid - Collection of Excise duty from the customers, on account of fluctuation in rates of the petroleum products – Whether the assessee is a dealer or manufacturer – Held that:- Following M/s BPCL Vs. CCE, Meerut [2011 (9) TMI 434 - SUPREME COURT OF INDIA] - There is nothing on record to show that the respondent is a manufacturer, on the contrary, from the initiation of proceedings at the time of issuance of notice till conclusion, they are treated as dealer - once the tribunal has decided the matter based on the principles settled, there was no reason to interfere in the matter – Decided against Appellant.

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• 2013 (12) TMI 879 - BOMBAY HIGH COURT
  

  Application for condonation of delay rejected – Compliance of Section 35(B)(5) of Central excise act – Appellant contended that the Tribunal has failed to take into consideration subsection 5 of Section 35(B) of the Central Excise Act which empowers the learned Tribunal to condone the delay – Held that:- It is not as if the appellants were not doing anything in the matter and have not taken any steps for filing the appeal - The delay has occasioned on account of the procedural aspects - After the Commissioner of Goa decided to accept the order, the matter was required to be sent to the Commissioner of Belgaum who was another member of the Committee - the Commissioner of Belgaum had proceeded on leave and the additional charge was given to the Commissioner of Mangaluru, the file was required to be sent to the Commissioner of Mangaluru - it would be in the interest of justice to condone the delay - Instead of non suiting the appellant on the technical ground, it would be appropriate that the dispute between the parties is decided on merits – Delay condoned – Decided in favour of Appellant.

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• 2013 (12) TMI 878 - SUPREME COURT
  

  Liability to pay interest u/s 112 of the Finance Act, 2000 – Consequent interest under the Central Excise Rules, 1944 - Interest payable on wrongfully availed MODVAT credit – Held that:- Relying upon Sangam Spinners Limited v. Union of India & Ors. [2011 (3) TMI 4 - Supreme Court] - Section 112 of the 2000 Act did not take away any right of any assessee with retrospective effect - the HSD oil had been specifically excluded from the list of eligible inputs with effect from 16th March, 1995 and therefore, no assessee had any vested right to avail benefit of MODVAT credit on the HSD oil used as an input – Thus, if any benefit, which had been wrongly availed by any manufacturer, the benefit wrongfully availed had to be returned.

  Once it is certain that the MODVAT credit had been wrongly availed by the respondents, the Revenue cannot be blamed, if the amount wrongly availed by way of MODVAT credit by the respondents is recovered with interest - Revenue had given 30 days’ time to return the amount to the respondents who had wrongly availed MODVAT credit on the HSD oil used as an input - If anyone who had repaid the amount wrongly availed within 30 days from the date on which Section 112 of the 2000 Act got the President’s assent, that assessee had not to pay any interest on the amount of duty availed by him wrongly - But those who had availed the MODVAT credit on the HSD oil used as an input and did not return the said amount even within 30 days from the date on which the President had given assent to the enactment of Section 112 of the 2000 Act, had to return the amount wrongfully retained by them with interest at the rate of 24% p.a - such a course, adopted by the Revenue for recovery of the amount which was legitimately claimed by the Revenue, cannot be said to be bad in law - the High Court committed an error by not considering the aforestated factors – Order set aside and decided in favour of Appellant.

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• 2013 (12) TMI 877 - CESTAT AHMEDABAD
  

  Cenvat credit on Low Sulphur Heavy Stock – Use of fuel in generation of electricity further used - Held that:- The Commissioner (A) has set aside the order in original and allowed the appeal of the respondent holding that the cenvat credit is admissible on quantity of LSHS used in for generation of steam/electricity which is further used in the manufacture of fertilizers – M/s. Maruti Suzuki Ltd. Versus Commissioner of Central Excise, Delhi-III [2009 (8) TMI 14 - SUPREME COURT ] - the assessee is not entitled to cenvat credit in respect of LSHS used in generation of steam/electricity which is further used in the manufacture of fertilizers - the findings of the Commr (A) with regard to eligibility of cenvat credit on Low Sulphur Heavy Stock.

  Imposition of Penalty – Conflicting views on penalty - Penalty is not leviable on appellant/assessee, particularly when in large number of other cases, on account of conflict of views expressed by various Tribunals/High Court, the assesses have also succeeded - No penalty is imposable on the assessee – relying upon M/s. Maruti Suzuki Ltd. Versus Commissioner of Central Excise, Delhi-III [2009 (8) TMI 14 - SUPREME COURT] – Decided partly in favour of Revenue.

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• 2013 (12) TMI 876 - CALCUTTA HIGH COURT
  

  Rectification of Appeal – Application rejected by Committee of disputes - Appellant contended that the payment was made under protest - Held that:- During the pendency of that application the judgment and order in the case of ECIL was passed by the Apex Court by which the Committee of Disputes was abolished - the application filed seeking clearance from the Committee of Disputes was dismissed on 2nd November, 2006 - Thus, the right of the appellant to pursue the challenge with regard to the demand for ₹ 15.66 crores was not permitted by the Committee of Disputes – Decided against Appellant.

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• 2013 (12) TMI 875 - CESTAT MUMBAI
  

  Classification of Liquid Hair Dye – Under Tariff item 68 OR 14F - Re-determination of the assessable value after fixing an abatement of 8% - Unjust enrichment – Held that:- Following GODREJ INDUSTRIES LTD. Versus ASSTT. COLLECTOR OF C. EX., BOMBAY-II [2002 (9) TMI 128 - HIGH COURT OF JUDICATURE AT BOMBAY] - Where a person approaches the High Court but fails, he cannot take advantage of the amount of duty so collected - He is under an obligation to return the said amount to the Revenue - this is a clear case of undue enrichment.

  The appellant collected the duty liability at the enhanced rate applicable to tariff item 14F even though they were discharging the duty liability only at the lower rate applicable to Tariff Item 68 – the appellant wants to enjoy the benefit of duty collection at the higher rate from the customers without remitting the same to the exchequer - the appellant is liable to discharge interest liability on the duty amount as they have collected the same from the customers without remitting to the exchequer - Prima facie the appellant had not made out a case for complete waiver of amount till the disposal - the appellant is directed to remit the interest liability calculated at the applicable rate for the period 14/05/2003 the date on which the provisions of Section 11DD came into force till the date on which the duty liability was discharged –upon such compliance rest of the duty to be waived till the disposal – Partial stay granted.

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• 2013 (12) TMI 874 - CESTAT MUMBAI
  

  Credit taken on duty paid on intermediate product - Waiver of pre-deposit of duty – Held that:- The applicants have paid duty on the intermediate product used in the manufacture of final product and they have paid duty while clearing these new products to their other units – Following Mahindra and Mahindra Ltd. vs. CCE Mumbai [2010 (12) TMI 403 - BOMBAY HIGH COURT] - if the duty illegally paid and once the same has not been refunded they cannot be denied the CENVAT credit - the applicants are able to make out a prima facie case for waiver of pre-deposit of amount – pre-deposits waived till the disposal – Stay granted.

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• 2013 (12) TMI 873 - CESTAT KOLKATA
  

  Excisability of water treatment plant – Waiver of Pre-deposit – Held that:- Revenue contended that the Applicant had assembled the said industrial treatment plant in their factory and thereafter, cleared in knocked down condition and commissioned at the site of the customer – the assessee contended that the various other items, viz. pipes, pipe-fittings, valves etc. required to be laid along with civil foundation, which could be done only at the sites of their customer - excisability of the "Water Treatment Plant" is highly debatable and rests on the evidences adduced by both sides - the Department during the course of investigation had seized Rs.38.76 lakhs – the Applicants offered not to seek refund of the said amount during pendency of the Appeal – Thus, the amount seized would be sufficient to hear the appeals – pre-deposits waived till the disposal – Stay granted.

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