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Central Excise - Case Laws
Showing 101 to 120 of 338 Records
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2011 (3) TMI 1199 - CESTAT, MUMBAI
Application for rectification - Application for rectification of mistake is that the order dated 09/10/1998 of the Tribunal is contradictory to the earlier order of the Tribunal dated 26/08/1997 - Held that:-Going through the order passed by the Tribunal dated 09/10/1998 wherein this Tribunal has recalled its earlier order dated 26/08/1997. This observation has also been made by the lower appellate authority. It is also an admitted fact that the Revenue has not preferred any appeal against the Tribunal's order dated 09/10/1998. Therefore, the order passed by this Tribunal dated 09/10/1998 holds the field.
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2011 (3) TMI 1198 - CESTAT, MUMBAI
Chiller packages installed in the premises of M/s. Hindustan Lever Limited by assessee - whether are excisable goods classifiable under Heading No. 8419.10 and liable to duty @ 40% ad valorem? -
- Held that:- The chiller plant erected and commissioned at site is an immovable property. Only the various components which has gone into the manufacture, therefore, can be removed and transported. The plant as a whole cannot be transported from one place to another. From the above it is clearly seen that the product in question, chiller plant, erected and commissioned at site by M/s. Voltas Limited out of duty paid components and erected and commissioned at the site of the factory premises of M/s. Hindustan Lever Limited cannot be called as 'goods' and accordingly they are not liable to excise duty - decided in favour of Assessee.
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2011 (3) TMI 1196 - CESTAT, MUMBAI
Dismantling of old and used D.G. sets and assembling - Whether after using the re-useable parts and new parts amounts to manufacture or not? - Held that:- Chartered Engineer's certificate and a Chartered Accountant's certificate with regard to percentage of new components used in the manufacture of D.G. sets produced by appellant - since the lower authorities have not examined the issue on the basis of these certificates, appeal is allowed by way of remand.
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2011 (3) TMI 1195 - CESTAT, MUMBAI
Rebate claim allowed in part – Cenvat credit denied - as per dept. the bought out items have also been cleared by the appellant under the guise of manufacture of goods and these were basically in the form of spares and the assessee had availed CENVAT credit on these goods - Held that:- There is no dispute about the fact that the cost of the bought out parts have been included in the value of the machinery which has been ultimately exported and forms very much part of the machinery. Further, whatever credit has been taken, the duty liability has been discharged on a value inclusive of such bought out parts and on that ground also the demand for reversal of the CENVAT credit does not sustain. It should also be observed herein that the transaction in the instant case is that of exports and it is the avowed policy of the government to promote export by relieving the burden of taxes on the products exported and also on the products consumed in the manufacture of the goods exported. Therefore, the rules whether they be CENVAT Credit Rules or Central Excise Rules have to be read harmoniously to give effect to this objective. Thus in the instant case apart from the fact that the appellant is rightly entitled to the CENVAT credit on the goods exported, even from a policy perspective, such credit is permissible. In favour of assessee.
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2011 (3) TMI 1194 - CESTAT, MUMBAI
Stay application - department insisted assessee to pay the interest on the duties, which were paid voluntarily for the extended period of limitation - whether order was not self explanatory? - Held that:- It is an admitted fact that the extended period of limitation is not invocable in this case as per the order. It is coming out that the interest has been asked on the payment made by the appellants voluntarily prior to the period of limitation, which is totally confusing the impugned order. Therefore the order is not correct - send back the matter to the adjudicating authority to clarify the impugned order as to what is payable by the appellants and what is not payable by them.
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2011 (3) TMI 1193 - CESTAT, MUMBAI
Inputs service tax credit on both the dutiable as well as exempted final products - non maintanence of any separate account - assesssee reversed the inadmissible inputs service tax credit, later on they paid the interest also - Held that:- Considering the submissions made by the Ld. Advocate of assessee that they have reversed the input service tax credit availed on exempted final product and paid the interest. As per Section 73 of the Finance Act, 2010, the Rule 6 of the Cenvgat Credit Rules, 2004, was amended and the assessee was given this benefit with retrospective effect which is applicable in the during the impugned period. Therefore, it would be appropriate in the interest of justice to examine this aspect by the original adjudicating authority - appeal is allowed by way of remand.
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2011 (3) TMI 1191 - CESTAT, MUMBAI
Job work - duty liability - appellants receiving goods from their principal under the cover of challan issued under Rule 4(5)(a) of the CENVAT credit Rules, 2001 and after completion of the job work, goods were returned to their principal manufacturer - fabrics are not covered under Notification 214/86, duty has been demanded on such clearances by dept. - Held that:- In the case of Trico Process P. Ltd. (2005 (5) TMI 152 - CESTAT, MUMBAI) it was held that inputs returned to principal manufacturer, no demand can be sustained against job worker in terms of provisions of Rule 57F(4) of the Rules or under Rule 4(5)(a) of the CENVAT Credit Rules, 2001. Therefore, the Tribunal held that no demand is sustainable in such a situation, no duty liability can be fastened upon him even if the goods are not specified under Notification 214/86-CE, As it has been concluded in the above cited judgment that provisions of Rule 4(5)(a) of CENVAT credit are independent of the Notification, order set aside and appeal allowed
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2011 (3) TMI 1190 - CESTAT, MUMBAI
Classification - non filing price list/declaration or declaring price on invoices as required under Rule 173C - violaion of principle of natural justice - Held that:- As the appellants were given ample opportunity for hearing but the appellants failed to appear before the adjudicating authority, therefore the adjudicating authority left no option but to decide the case on the basis of the documents in hand. So the ground that principles of natural justice has been violated is not sustainable.
As the issue of classification of the product was not the issue before the adjudicating authority therefore the adjudicating authority has not looked into that issue. As the issue of classification has been admitted by this Tribunal, therefore it would be appropriate and in the interest of justice that the issue of classification is to be considered by the adjudicating authority first - remand back this matter to the adjudicating authority to classify the product in appropriate chapter heading.
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2011 (3) TMI 1188 - CESTAT, MUMBAI
Period of limitation - benefit of exemption Notification No.108/95-CE denied to the appellants - appellants submits that in the appellants own case for the period January 2001 to February 2001 on identical facts, this Tribunal hold that the demands for the normal period is sustainable and if any period is beyond the normal period of limitation is not sustainable. Therefore, extended period of limitation is not invokable against the appellants - Held that:- Where the projects were financed by JBIC (which is not an approved organisation to finance the projects) this Tribunal, in the appellants own case, has held that demands for normal period of limitation are sustainable, no suppression can be invokable therefore extended period of limitation is not invokable. Following the same ratio, in this case also demands within the normal period of limitation are sustainable and no penalty be imposable on the appellants as there is no allegation of fraud, collusion, mis-representation, suppression of facts or contravention of provisions of Act and Rules with intent to evade payment of duties.
To calculate the normal period of limitation the period of stay by the Hon'ble High Court of Andhra Pradesh is to be excluded. If this period is excluded some demands confirmed in show-cause notice dated 18.08.2005 are within the normal period of limitation. Therefore, the demands for the normal period are to be re-quantified.
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2011 (3) TMI 1187 - CESTAT, MUMBAI
Charges recovered for erection and commissioning of SCADA system at the site of the customer and the considerations received for supply of accessories - whether includable in the assessable value? – Held that:- Tribunal, in the respondents own case on the identical issue for the earlier period, have decided that the charges recovered for the erection and commissioning of the SCADA at the site of the customers are not required to be included in the assessable value and considerations received for the supply of accessories are also not required to be included in the assessable value, no infirmity with the impugned order and the same is upheld, Appeals filed by the Revenue are rejected
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2011 (3) TMI 1185 - CESTAT, MUMBAI
Refund claim in terms of Rule 5 of CENVAT Credit Rules, 2004 r.w. Notification No. 5/2006 (N.T.) dated 14.3.2006 - Denial of refund on the ground that un-utilised credit can be utilised only for payment of duty on the final products on which the exemption under Notification No. 39/2001-CE dated 31.07.2001 has been availed - Held that:- It was clarified vide Board's letter from F.No. 209/11/2005-CX.6 dated 3.10.2007 that the manufacturer can avail rebate of duty paid on inputs used in the manufacture of goods exported in terms of Notification 21/2004-CE (NT) dated 6.9.2004. Rule 5 of the CENVAT Credit Rules, 2004 provides for refund of accumulated CENVAT credit in respect of export goods cleared under bond in case the manufacturer is unable to utilise the same for payment of duty in respect of domestic clearances. As input rebate is permissible to these units, refund under Rule 5 of the CENVAT Credit Rules, 2004 would also be admissible, subject to fulfillment of condition prescribed in the Rule and Notification issued under the said Rule. This aspect is to be examined by the lower appellate authority, appeal is allowed by way of remand
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2011 (3) TMI 1184 - CESTAT, MUMBAI
Application for stay - assessments of 'electrical relays' falling under Tariff Heading 8536 41 00 and 8536 49 00 - whether be done u/s 4 as claimed by the appellants or u/s 4A as held by the lower authorities - violation of principles of natural justice - Held that:- It is an admitted fact that the adjudication order has been passed without taking into consideration that the appellants have not received the relied upon documents. In fact, relied upon documents is to be supplied to the appellants, which is in violation of principles of natural justice. Moreover, the appellants were also not given opportunity to cross-examine the pancha witnesses. Therefore, the matter needs fresh examination - appeals are allowed by way of remand.
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2011 (3) TMI 1183 - CESTAT, MUMBAI
Classification of Jeeraloo - appellant made a request that the show cause notices be clubbed together and 45 days time be given for filing reply on the classification of Jeeraloo - Held that:- As the appellant could not file their reply within 45 days, the adjudicating authority without giving any personal hearing, passed the impugned order - adjudicating authority has not examined the issue of classification of Jeeraloo on merits - order set asode and remand the matter back to the adjudicating authority for deciding the issue of classification of Jeeraloo, appeal as well as the stay application are disposed of
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2011 (3) TMI 1182 - CESTAT, MUMBAI
Classification of bubble gum - whether classifiable under Chapter Heading 1704 10 00 or 1704 90 90 and whether the appellants are entitled to avail benefit of Notification No. 6/2002-CE dated 01/03/2002? - Held that:- As decided in Shri Perfetti Van Melle India (P) Ltd. vs. Commissioner of Central Excise, Delhi - III [2007 (2) TMI 377 - CESTAT, NEW DELHI] bubblegum is classifiable under Chapter Heading 1704.90 and the appellants are entitled for the benefit of the Notification No. 6/2002-CE - the appellants have made a strong case in their favour accordingly waiver of pre-deposit of the duty, interest and penalty granted and stay recovery thereof.
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2011 (3) TMI 1181 - CESTAT, MUMBAI
Cost of transportation and transit insurance incurred for supply of goods up to the premises of the buyer - whether includable in the assessable value of the goods? - Held that:- Merely because the assessee has transported the goods and insured the same up to the buyer's premises, it does not mean that the place of removal is the buyer's premises. As in the case of Escorts JCB Ltd. (2002 (10) TMI 96 - SUPREME COURT OF INDIA) will apply squarely to the facts of the present case and accordingly the question of inclusion of freight and insurance charges in the assessable value does not arise. Also as per the Board's circular dated 03/03/2003 the assessable value cannot be loaded with freight and insurance charges. In favour of assessee.
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2011 (3) TMI 1180 - CESTAT, MUMBAI
Power to remand of Commissioner (Appeals) to the adjudicating authority - Held that:- As per Finance Act, 2001 power to remand by Commissioner (Appeals) has been withdrawn with effect from 11.5.2001 - Commissioner (Appeals) have no power to remand the matter to the adjudicating authority with effect from 11.5.2001 See MIL India Ltd. vs. CCE [2007 (3) TMI 8 - SUPREME COURT OF INDIA] - set aside the impugned order and remand it back to the Commissioner (Appeals) to decide the issue in accordance with law
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2011 (3) TMI 1179 - CESTAT, MUMBAI
Demand of duty, interest and penalties - Valuation - submissions of the appellants that excise paid on inputs in respect of which modvat credit is taken cannot be included in the cost of raw material - Held that:- As appellants has produced the certificate issued by the chartered accountant in respect of valuation of normal price, certificate points out the freight charges incurred by AEL for getting material from BAL to AEL as well as loading and unloading charges consumables overheads and profits this certificate was not produced by the appellants before this Tribunal as well as before the adjudicating authority - matter is remanded back to the adjudicating authority to considering the certificate issued by the chartered accountant.
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2011 (3) TMI 1178 - CESTAT, MUMBAI
Classification - Everest Badam-Pista Mix - as per Tribunal the said product merit classification under sub-heading No.2107.91 and not as nuts falling under sub-heading No.0801.10 – Held that:- After taking into account the amendment made to the Central Excise tariff, which had aligned the excise tariff with the HSN and the Customs tariff with effect from 28/02/2005 the product being an edible preparation of nuts, merits classification under sub-heading No.2008.1990 with effect from 28/02/2005. This classification is applicable only for the period from 28/02/2005 onwards in the context of the amended excise tariff. Therefore, in the instant case also the Badam Pista Mix which has the same composition as the Milk Masala would merit classification under sub-heading 2008.1990 only from 28/02/2005 onwards. For the period prior to this date there is already a judgement of the Tribunal holding the product to be classifiable under 2107.91. Therefore, for the period prior to 28/02/2005 the said Tribunal decision would prevail.
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2011 (3) TMI 1176 - CESTAT, MUMBAI
Best judgement assessment - Assessee opted for provisional assessment as they have to claim rebate on account of post manufacturing expenses on goods i.e freight and insurance and rebatement was allowed to the appellant on the basis of data provided to the adjudicating authority - whether the order passed by the adjudicating authority on the basis of best judgement assessment is correct or not? - Held that:- As appellant submitted that their factory has been sold out and they have no records and sought best judgement assessment by the adjudicating authority, adjudicating authority had finalised the assessment on the basis of best judgement assessment as confessed by the Rule 173(I) of Central Excise Rules. DR failed to produce any records for the assessment for the impugned period. Thus the adjudicating authority has applied its mind judiciously by finalising the assessment on the basis of best judgement and the same has been admitted by the appellant.
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2011 (3) TMI 1175 - CESTAT, MUMBAI
Abatement - since the abatement as claimed by the applicant has not been decided, they should not be subjected to the demand of duty, penalty and interest - Held that:- The impugned order has been passed by the lower appellate authority as per the direction of this Tribunal in earlier proceedings. It is also an admitted fact that the Revenue has not challenged the earlier order passed by this Tribunal, therefore, the said order has attained finality. As per the Board's Circular No. 485/51/99-Cx dated 15.9.1999, the Board has given instruction that 'the Commissioner to decide first whether the processor was otherwise eligible for abatement or not. In case he is eligible and he had not paid the duty, the abatement should be granted without asking him to pay duty first or where he had paid the duty, he should be reimbursed the amount of duty paid, in terms of the order of abatement issued by the Commissioner.' As the lower appellate authority has kept the matter in abeyance as per the direction of this Tribunal, no infirmity in the impugned order as the claim of abatement is still not decided i.e. after the passage of time of almost more than 12 years.
Thus why the department has filed this appeal when they are not aggrieved with the impugned order - appeal filed by the Revenue is rejected.
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