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Central Excise - Case Laws
Showing 321 to 340 of 388 Records
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2013 (12) TMI 336 - CESTAT NEW DELHI
Remission of duty – Goods destroyed in fire – Held that:- The appellants have adopted the same mode of stocking the goods for the last number of years without their being any mis-happening – it was unintended and, has occurred on account of excessive heat for which appellant cannot be held responsible - nobody intentionally invites such accidents and they happen on account of various natural causes - Following Union of India v. Hindustan Zinc Ltd. [2008 (10) TMI 63 - HIGH COURT RAJASTHAN] – the expression “natural causes” and “unavoidable accident” are required to be given reasonable and liberal meaning and a more practical approach is required to be taken - the fire was not on account of any lapse on the part of the appellant – There was no reasons to deny remission of duty to the appellant in respect of the finally manufactured goods destroyed in fire – Confirmation of duty on goods set aside.
Denial of credit of duty on packing material – Held that:- Packing material was lying in the godown of the applicant and was not even issued for further use in the factory - credit in respect of raw material/packing materials (Bleaching Powder) which were not put to use or were not even issued for use as is required to be reversed - the accident occurred on account of unavoidable cause, imposition of penalty upon appellant is not justifiable and set aside – Decided in favour of Assessee.
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2013 (12) TMI 334 - CESTAT AHMEDABAD
Cenvat credit of CVD - Goods imported which were originally exported – Waiver of Pre-deposit – Held that:- The provisions of Notification No.94/96-Cus. as to his role will indicate that the appellant is required to discharge the CVD at the time of importation of the goods - the amount which has been paid as the CVD by the assessee, is eligible to be availed as cenvat credit by the appellant - Prima facie, the assessee has made out a case in their favour – Pre-deposits waived till the disposal – stay granted.
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2013 (12) TMI 287 - ALLAHABAD HIGH COURT
Scope of Section 35-B (2) of the Central Excise Act – Appeal could be dismissed or not – Filing of counter Affidavit – Held that:- The opinion of the Board of Commissioner of the Central Excise under Section 35B is not justiceable on merits in Court - The opinion to be formed by the Board of Commissioners is a prima facie opinion and is not conclusive in nature which may be subject to challenge by the assessee on merits - If such an order is subjected to judicial review, it may give rise to taking ground to be agitated in almost every case and will cause unnecessary delay in disposal of the appeals under Section 35B of the Act - the object and purpose of enacting Section 35-B (2) of the Act is to avoid filing of frivolous and unnecessarily appeals, and to safeguard the interest of the revenue.
Relying upon Collector Vs. of Central Excise, Vadodara Vs. Rohit Pulp Paper Mills [1998 (4) TMI 138 - SUPREME COURT OF INDIA] - The record clearly demonstrates that the Committee of Commissioners have signed on the note, which contains the reasons, and the proposed order giving grounds on which the appeal has to be filed - the Committee of Commissioners have applied their mind before authorizing to file the appeal - Granting time to the respondent to file a counter affidavit, especially when we perused the original records cannot be allowed – Decided in favour of Appellant.
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2013 (12) TMI 286 - CESTAT BANGALORE
Penalty under Rule 15(2) of CENVAT Credit Rules - Tempered documents – Mis-declaration with intent to evade duty – Held that:- The allegation of tampering of delivery challans and showing the wrong date in the delivery challan has not at all been established - There is no clear finding that in the verification report the AC has mentioned that there was tampering - when the table itself is compared with the documents and in the absence of an extra column to show the actual date of dispatch and actual date of delivery challan in the table, it cannot be said that the Revenue has made out a case of tampering against the appellant - the credit has been reversed when the audit pointed out the same – it cannot be said that there was suppression of fact or misdeclaration with intent to evade duty unless it is shown by way of statements of the concerned officers of the company or any other evidence to show that there was an intention on the part of the appellant to evade duty or to suppress facts - no investigation has been conducted as regards the manipulation of any records.
There was considerable force in the argument that no penalty could have imposed under Section 11AC in the absence of determination of CENVAT credit to be reversed as per the provisions of Section 11A (2) of Central Excise Act 1944 - penalty under Rule 15(1) as well as penalty under Rule 15(2) cannot be sustained – Decided in favour of assessee.
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2013 (12) TMI 285 - CESTAT AHMEDABAD
Condonation of Delay – Delay of 23 days - Held that:- The reasons given by the appellants for condonation of delay are totally unacceptable, inasmuch as having delayed the proceedings before the adjudicating authority and subsequently stating that on receipt of adjudication order they were under bona fide belief that the adjudication having passed beyond the stipulated period, is misconceived and incorrect - it is totally unacceptable reason for condonation of delay - any delay would be considered with pragmatism in a justice oriented approach, rather than the technical detection of sufficient cause - it cannot attributed to the adjudicating authority - no other valid reason or justifiable cause was propagated by the appellant before the first appellate authority – thus, the first appellate authority was correct in coming to the conclusion that appellant had not justified the belated filing of appeal before him – Decided against Assessee.
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2013 (12) TMI 284 - CESTAT AHMEDABAD
Demand of interest – Held that:- Assessee contended that there is no intention to evade any excise duty by undervaluing the goods merits consideration as there is no dispute that the appellant’s sister concern has consumed the goods cleared by the appellant and has discharged Central Excise duty on the final products so manufactured - there can be no intention to evade the duty, as any duty paid by the appellant would have resulted in CENVAT Credit to the appellant’s sister concern – Following Commissioner of Central Excise & Customs, Vadodara-II Vs. Gujarat Narmada Fertilizers Co. Ltd. [2012 (4) TMI 309 - GUJARAT HIGH COURT ] - the demand of interest which is beyond the period of one year from the date of issuance of show-cause notice is unsustainable - As regards the demand of interest, within a period of one year from the date of issue of show-cause notice, such demand is upheld – Decided partly in favour of Assessee.
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2013 (12) TMI 283 - CESTAT MUMBAI
Goods to be considered as capital goods or not – Waiver of Pre-deposit – Held that:- MS channels, angles, platforms, structures etc. cannot be considered as machinery under CETH 8419 - Machinery is something used for manufacture or processing or working upon some materials. -The platform does not do any of these and, therefore, from a common sense perception, platform is not machinery but it is only a supporting structure for the machinery – Following Vandana Global Ltd. Versus CCE [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB) ] - cement and steel items used for foundation or building supporting structures for capital goods cannot be considered as capital goods or parts or accessories of capital goods - iron and steel structures manufactured and captively used cannot be considered as capital goods eligible for Modvat/Cenvat credit - The appellant is directed to make a pre-deposit of the entire amount of CENVAT credit taken wrongly along with interest as pre-deposit - upon such submission rest of the amount to be stayed till the disposal – Stay granted.
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2013 (12) TMI 282 - CESTAT BANGALORE
Recall of appeal - Reversal of cenvat credit amount directed – Held that:- The dismissal of the customs appeal for non-compliance with Section 35F of the Central Excise Act was an apparent error which crept into the final order dated 10.9.2012 on account of inadvertent oversight - Only the excise appeal was liable to be dismissed on the stated ground - the final order dated 10.9.2012 is recalled insofar as it affects the customs appeal, and the appeal is restored to its original number – Decided in favour of Assessee.
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2013 (12) TMI 281 - CESTAT AHMEDABAD
Benefit of reversal of proportionate CENVAT Credit of inputs or input services - Waiver of Pre-deposit – Held that:- It would be covered by the retrospective amendment to the provisions of Rule 6 of CENVAT Credit Rules, 2004 and the appellant is entitled to reverse the proportionate CENVAT Credit availed on the Service Tax paid on the common input services - In the post 01.04.2008 scenario, the provisions of Rule 6(3A) was inserted which specifically require the assessee to follow the procedure in order to avail the benefit of reversal of proportionate CENVAT Credit of inputs or input services attributable to the exempted goods manufactured and cleared from the factory premises - the appellant has not followed the said procedure - the appellant has already deposited an amount of Rs.13.65 lakhs along with during the pendency of the matter - the appellant is directed to deposit further an amount of 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 280 - CESTAT NEW DELHI
Benefit of SSI Exemption - Brand name of goods – Held that:- Where Mobike parts sold under own brand name and Logo of different mobike manufacturers mentioned for their identification only, it is required to be known as to which particular manufacturer of mobike they were meant for, held that use of logo/words was not such as to deny SSI exemption to the SSI - the Respondent was putting his own brand name to the goods manufactured by him - The reference to various modal of the car was only for the identification of specific use of the goods in that particular model - floor mats of the size of Zen car cannot be placed in the car of another model, which may require different specifications and seizes - for the purpose of identify the specific use, the marks of such models has to be mentioned on the goods – Following Magnum Automotive Industries V/s. CCE-Noida [2003 (3) TMI 444 - CEGAT, NEW DELHI] - mark of various modal on the goods manufactured by the assessee cannot be held to be covered by debarring clause of small scale exemption notification – Decided against Revenue.
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2013 (12) TMI 279 - CESTAT NEW DELHI
Denial of Cross examination – Held that:- There was no merit in the reasons adjudicated by the Commissioner for denying the cross examination's request - the appellant cannot be attributed to any melafide intention to delay the adjudication proceedings on account of cross examination - Following Laxman Exports Ltd. V/s. CCE [2002 (4) TMI 66 - SUPREME COURT OF INDIA] - the assessee specifically asked to cross examine the representatives to establish that the goods had been accounted for - Matter remitted back to the Commissioner for fresh adjudication after observing the principles of natural justice – Decided in favour of Assessee.
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2013 (12) TMI 278 - CESTAT NEW DELHI
Provisional assessment - Principle of unjust enrichment - Adjustment of the excess paid with the short-paid duty – Held that:- Excel Rubber Ltd. v. CCE, Hyderabad [2011 (3) TMI 527 - CESTAT, NEW DELHI (LB)] - even in respect of provisional assessments, no adjustments can be held to be permissible at the time of finalization of the assessment - the assessment were not provisional and as such the benefit of neutralization cannot be extended.
Admissibility of the Notification No. 53/2001 – Held that:- The benefit of the notification in respect of the differential demand of duty could not have been availed by them at the time of original clearance of the goods - The appellant had availed the benefit, without any objection, at the time of the original clearance of the processed fabrics, relatable to the duty paid by them at that time - If the Revenue is subsequently making a demand of the differential duty, the same has to be subject to the benefit of the notification available.
Extended period of Limitation – Held that:- An assessee is required to pay duty on the correct assessable value at the time of clearance of the goods - the variation in job charges amount was known to the assessee prior to the clearance of the processed fabrics - the less payment of duty was not intentional and was on account of error on the part of the assessee - Had it been intentional, the appellant would not have paid higher duty on the other clearances - it is clear that there was no ulterior motive on the part of the assessee to evade payment of duty - the extended period of limitation would not be available to the Revenue – order set aside and the matter remanded back to the adjudicatory authority for recalculation of duty demand within the period of limitation and by extending the benefit of Notification No. 53/2001- there was no mala fide intention on the part of the appellant, imposition of any penalty on them is not justified – Decided in favour of Assesse.
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2013 (12) TMI 277 - CESTAT AHMEDABAD
Valuation of Goods u/s 4A OR 4 of Central excise Act,1944 - Pet jars cleared as retail package and not as wholesale package -Waiver of pre-deposit and interest – Held that:- Relying upon SWAN SWEETS PVT. LTD. Versus COMMISSIONER OF C. EX., RAJKOT [2006 (1) TMI 269 - CESTAT, MUMBAI] and ROYS INDUSTRIES LTD. Versus COMMISSIONER OF C. EX., HYDERABAD [2010 (9) TMI 257 - CESTAT, BANGALORE] - the entire issue needs to be gone into detail as regards the definition of net quantity, multi piece package and retail package viz-a-viz a wholesale package, as mentioned in the SWM (Package Commodity) Rules, 1977 - in appellant’s own case, the Tribunal had already held in their favour holding that these packages are not retail packages but whose sale package - the appellant has made out a case for the waiver of pre-deposit of the amount - Application for the waiver of pre-deposit of the amounts involved allowed till the disposal – stay granted.
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2013 (12) TMI 276 - CESTAT NEW DELHI
Remission of duty of molasses stored in steel tanks – Held that:- Losses is below 2% and the reasons stand advanced by the assessee are on account of evaporation, handling and chemical reaction etc - The Central Board of Excise and Customs vide its letter No. 261/CC/1/80-CX-B dated 6.2.1982 and instruction No. 74/1989 dated 1.6.89 of Meerut Collectorate, storage losses of molasses upto 2% are allowable - The Commissioner has not advanced any reasons for not following the said instructions - there is no allegation that losses occur due to clandestine removal of molasses – order set aside – Decided in favour of Assessee.
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2013 (12) TMI 275 - CESTAT NEW DELHI
Benefit of Exemption Notification 6/2003 – Addition of saccharine to scented supari – Held that:- Addition of saccharine to the flavoured supari would not take away it from the category of scented supari – Following CCE, Guntur v. Crane Betel Nut Powder Works [2007 (3) TMI 6 - SUPREME COURT OF INDIA] - addition of sweetening material to the betel nut would not result in new and distinct or different product - addition of saccharine would not result in sweetened scented supari rather than only scented supari - Decided against Revneue.
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2013 (12) TMI 226 - ALLAHABAD HIGH COURT
Maintainability of Appeal – Held that:- Four different appeals should have been preferred by the department and in such case each of the appeals would be for an amount lower than ₹ 10 lacs - In any case even if the amount of all four appeals is taken together, the total amount comes to ₹ 9,77,884/-, which is less than ₹ 10 lacs and that the appeal also does not fall in any of the exceptions.
Deemed Export - Whether supplies to 100% EOU be treated as export for the purpose of cash refund of accumulated Cenvat credit under Rule 5 of CCR, 2004 – Held that:- The respondent has fairly stated that they will not insist upon cash refund - The respondent company has taken credit of the amount and intimation to that effect has been given to the Assistant Commissioner, Central Excise within time.
Applicability of Limitation - Whether the time limit prescribed under Section 11B is applicable in the case of refund claim under Rule 5 of CCR, 2004- Held that:- The amount involved in the appeal is less than ₹ 10 lacs and no question of constitutional validity of any provision of Act or Rule is involved nor any Notification/Instruction/Order or Circular has been held illegal or ultra vires, the appeal in view of the Instructions dated 17.8.2011 issued by the Central Board of Excise & Customs, Department of Revenue, Ministry of Finance is not required to be heard – Decided against Appellant.
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2013 (12) TMI 225 - ANDHRA PRADESH HIGH COURT
Scope of Section 35G of the Central Excise Act, 1944 – appealable orders or writ petition to be filed against an interim order passed by CESTAT against Application for waiver of Pre-deposits – Held that:- The words "every order passed in appeal" contemplates number of orders, not one or singular, and passing of the same is possible on several issues and problems in connection with appeal - interlocutory proceedings are contemplated to be filed - the Legislature has used the word "in appeal" not "on appeal” - If it were so then it would have been one order meaning final order - But that is not the intention of the Legislature because unless there is appeal, there cannot be any application for dispensation of pre- deposit, as the application of this nature is not independent one unlike when the application is made for dispensation of service of notice under section 80 of the Code of Civil Procedure at the time of filing of the suit against amongst other Government, as this application is an independent of suit not in the suit - the scheme of the provision is that one has to prefer an appeal first and then in connection therewith application for pre-deposit is to be made - Pre- condition of hearing of appeal is either pre-deposit or dispensation thereof either whole or part thereof.
The contention that the orders passed on the application for pre-deposit is not covered by Section 35G cannot be accepted – Following M/s. Metal Weld Electrodes, Chennai Vs. M/s. Ellan Industries, Coimbatore [2013 (11) TMI 240 - MADRAS HIGH COURT] - The petitioner would be entitled to prefer appeal if advised in accordance with law - the interim order passed already to operate for a period of ten days from date allowed – Decided in favour of Petitioner.
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2013 (12) TMI 224 - CESTAT AHMEDABAD
Confiscation of the White Sugar - unaccounted stock - revenue allege that they manufacture white sugar on which duty is liable to be discharged but cleared the same as Khandsari Sugar claiming exemption - Proper Examination of evidences not made - Held that:- The appellants had submitted Form No.11 prescribed under Rule 61 of the Gujarat Factories Rules, 1967 – the open pressure pan was not insulated - The certificates up to 2004 were of open pressure pan - from the year 2005, Form No. 11 specifically talks about vacuum pans which were insulated vessels and undisputedly can be used for manufacture of White Sugar - If the appellant’s factory did not have vacuum pan during the period 2002 to December 2004, the appellant cannot manufacture White Sugar - The evidence has been totally over looked by the adjudicating authority and hence the findings that the appellant were manufacturing White Sugar from 2002 to 2005 seems to be incorrect and misdirected.
Mere perusal of the process flow sheet of machineries installed in the factory premises at the time of taking the consent indicated that there was manufacturing of only Khandsari Sugar and nowhere had it indicated that there was intention to manufacture White Sugar - All these evidences which were on the file were over looked by the adjudicating authority while coming to a conclusion that appellant had manufactured White Sugar and not Khandsari Sugar - the appellant had in fact, in the application made to GPCB indicated that there was cooling pan in the ATP unit of the appellant - there was nothing on record to indicate that cooling pan which was there in the factory premises of the appellant when they applied for consent from GPCB or can be used with machineries like vacuum pressure pan.
The appellant had produced various certificates from the purchasers of Khandsari Sugar during the material period - the purchasers have specifically stated that they were regularly procuring Khandsari Sugar from the appellant and were also dealing in sugar from various manufacturers - The certificates specifically note and record that the purchases made from the main appellant SGSI were of Khandsari Sugar – the attitude of brushing aside of evidence produced by the assessee in his support is incorrect – Following COMMISSIONER OF C. EX., CUS. & SERVICE TAX Versus VISHWA TRADERS P. LTD. [2013 (4) TMI 55 - GUJARAT HIGH COURT] - the order confirming demand of Central Excise duty from the appellant for the period 2002 to 2005, holding that appellant had manufactured and cleared White Sugar, is without any evidence and unsupported reasoning - The order, to that extent set-aside.
Duty on molasses - Unaccounted stock – Held that:- The records indicate that the appellant has produced only Khandsari Sugar and it is also brought on record that molasses arising out of manufacturing of Khandsari Sugar has been consumed by main appellant for manufacture of ‘Rotan Gur’ - the benefit of General Exemption No. 52 (Notification No. 6/2002) as extended at Serial No. 6, will be applicable and duty liability will be ‘Nil’ as the molasses arising and captively consumed out of manufacture of Khandsari Sugar - the confiscation of the White Sugar upheld which was found in the factory premises during the visit of investigating officers, the appellant should be penalised for non-recording White Sugar in their books of account – Decided partly in favour of Assessee.
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2013 (12) TMI 223 - CESTAT NEW DELHI
Remission of duty - Fire broke into the factory to be treated as unavoidable factor or not – Raw materials, semi- finished goods as well as finished goods destroyed by fire -Held that:- The fire broke in the appellants factory on account of short circuiting, which is attributable to electric malfunctioning - The appellants have rightly contended that no sane industrialist will cause huge loss of money invested in plant and machinery in the factory by fire accident, due to negligence - The fire caused by short circuiting cannot be avoided by taking precautionary measures – Relying upon Union of India vs. Hindustan Zinc Ltd. [2008 (10) TMI 63 - HIGH COURT RAJASTHAN ] nobody intentionally invites such accidents to happen and they happen on account of various natural causes’ and have to be held as unavoidable accident.
Denial of Remission – Held that:- Following Grasim Industries vs. CCE, Indore [2006 (8) TMI 69 - CESTAT,NEW DELHI ] - When the Larger Bench decision of the Tribunal has decided the issue, the law gets declared on the disputed issue and is required to be followed by all the adjudicating authorities, unless the same is reversed by the higher appellate forum - the Commissioner was bound to follow the Larger Bench decision - rejection of the remission application cannot be upheld.
Remission of duty on the semi-finished goods - Held that:- The Revenue cannot call for any duty on the said semi-finished goods - Either they are non-dutiable in which case no duty can be demanded or the same or have to be granted remission from payment of duty, having been admittedly damaged in fire accident – order set aside – Decided in favour of Assessee.
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2013 (12) TMI 222 - CESTAT NEW DELHI
Cenvat credit taken on Input – Separate account not maintained – Inventory includes dutiable as well as exempted final product - Press mud emerges as waste – 10% duty to be paid as per Rule 6(3) of the Cenvat Credit Rules, 2004 – Held that:- The press mud obtained is nothing but waste from the cane sugar which arises in course of cleaning of the same, that the product is not excisable - The requirement of Rule 6 (2) can be fulfilled only in respect of the final products which a manufacturer wants to manufacture and this requirement cannot be fulfilled in respect of inevitable waste or by product, as when in the manufacture of some final product, some waste or inevitable by-product emerges, the manufacturer, even if he wants to comply with the provisions of Rule 6 (2), cannot do so – Following Narmada Gelatines Limited vs. CCE, Bhopal [2008 (11) TMI 75 - CESTAT NEW DELHI] and Rallis India Ltd. vs. Union of India [2008 (12) TMI 46 - HIGH COURT BOMBAY] - provisions of Rule 6 (2) and 6 (3) would not apply – order set aside – Decided in favour of Assessee.
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