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Central Excise - Case Laws
Showing 101 to 120 of 246 Records
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2007 (4) TMI 475 - CESTAT, NEW DELHI
Refund - Area based exemption ... ... ... ... ..... notification would be available to the appellant. From the nature of the amendment made in the original notification by the aforesaid Notification dated 22-12-2003, it is abundantly clear that the description which was not full in the earlier notification, is now made complete and the benefit was obviously intended to be given to the units in the said two Khasra numbers which have been now more appropriately described by the amended notification. There is no question of the notification being of retrospective effect since the notification only gives more accurate for identifying the same two Khasra numbers by substituting their earlier description. The benefit should, therefore, be treated to have been always available in respect of the said notified area, in accordance with the provisions of the said notification to the appellant. The impugned order, therefore, cannot be sustained and is hereby set aside with consequential reliefs. (Dictated and pronounced in the open Court)
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2007 (4) TMI 474 - CESTAT, AHMEDABAD
Recovery of erroneous granted refund - Held that: - the order of refund dt. 26-4-04 has not been appealed against or reviewed by the Department and therefore recovery of the refund of ₹ 1,11,744/- paid from the appellant by issue of show cause notice under Section 11A is not in order - appeal allowed - decided in favor of appellant.
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2007 (4) TMI 473 - CESTAT, MUMBAI
Interest and penalty - Cenvat/Modvat ... ... ... ... ..... uty in the present case (representing Modvat credit dis-allowed) was paid well before this date i.e. in 2000 itself. The ground on which the appellants also submit that they are not liable to penalty is Explanation to Clause 82 of the Finance Bill, 2005 which prescribes that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this section had not come into force. 3. emsp Learned S.D.R. reiterates finding of the lower authorities. 4. emsp On a careful consideration of the rival submissions we find substance in the plea of the appellant in light of the language of sub-clause 2(b) of Clause 82 of the Finance Bill, 2005 and in the light of the Explanation to Clause 82. We, therefore accept the appellants rsquo contention that they are not liable to pay interest or penalty, and accordingly set aside the same while upholding the duty demand. 5. emsp Appeal is partly allowed in the above terms. (Dictated in Court)
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2007 (4) TMI 472 - CESTAT, MUMBAI
Notification Nos. 21/2002-Cus., 21/2005-Cus. and 6/2002-C.E. ... ... ... ... ..... and IIT, Mumbai opinion that the CDMA WLL phones in question are cellular phones as they work on cellular communication technology and it is pertinent to note that the Commissioner has not recorded any finding that the phones in dispute do not work on the above technology. This being so, prima facie the decision of the Apex Court in the case of Tata Teleservices Ltd. v. CC, 2006 (194) E.L.T. 22 (S.C.), holding that telephones that work on cellular communication technology are cellular phones will apply to the facts of the present case, to hold that prima facie both models of the telephones in dispute are cellular phones eligible to the benefit of exemption from payment of Customs duty as well as excise duty under the relevant notifications in force during the material period. 3. emsp In the light of the above, we waive pre-deposit of the duties and penalties confirmed against the applicants and stay recovery thereof during the pendency of these appeals. (Pronounced in Court)
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2007 (4) TMI 471 - CESTAT, NEW DELHI
Refund - Limitation - Relevant date ... ... ... ... ..... period of six months from that date, the refund claim was time-barred as rightly held by the authorities below. Further more, as held by the Supreme Court in Priya Blue Industries, once the order of assessment was passed, the duty was payable by that order and unless it was reviewed or modified in appeal, it was not open for the officer considering the refund claim to sit in appeal over the assessment made by the competent officer. The observation of the Commissioner (Appeals) that in his considered view the ratio of Apex Court in Priya Blue Industries was not applicable even though admittedly the assessment order was not appealed against flies in the face of the ratio of the decision of the Supreme Court in Priya Blue Industries Ltd., and are rather unwarranted. 6. emsp For the foregoing reasons, there is no case made out for interfering with the impugned order, dismissing the appeal of the present appellant. This appeal is therefore, dismissed. (Dictated in the open Court)
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2007 (4) TMI 469 - CESTAT, KOLKATA
Interest - Price escalation ... ... ... ... ..... both sides and perusal of the appeal papers and the legal provisions, I find that this is a case where the assessments were not finalized and the entire differential duty amount has been paid by the appellants voluntarily on the same day they realised additional amounts from their customers on account of price escalation. As such, the present case cannot be categorized as a case of short-levy or non-levy which is sought to be covered under Section 11A and Section 11AB. Assessments involving price escalation, are deemed to be provisional and hence the amounts which have been paid after the final value was determined applying price escalation are akin to payment on finalization of the provisional assessment. Accordingly, no interest is payable by the appellants on the differential duty amount paid by them voluntarily, as this is not a case of non-levy or short-levy. Consequently, the impugned order is set aside and the appeal allowed. (Dictated and pronounced in the open Court)
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2007 (4) TMI 468 - CESTAT, BANGALORE
Stay/Dispensation of pre-deposit - Held that: - As the learned JDR wants to get comments from the Commissioner on the applicability of the Larger Bench judgment, we are proceeding to grant Ad Interim Stay against the recovery of the amounts till the stay application is disposed of.
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2007 (4) TMI 467 - CESTAT, MUMBAI
Demand - Limitation - Invocation of extended period ... ... ... ... ..... any such elements exist on the part of the assessee when good lot of goods were exported as per Annexure B after due execution of the bond, except the four small consignments as per Annexure-A cannot otherwise prove mala fide intention to attract either fraud or evasion of duty. Therefore, I rule out the possibility of existence of any mala fide intention, suppression of fact or fraud on the part of the respondent assessee. Even otherwise the erstwhile Rules 57CC does not provide the machinery for recovery of demand. There is settled law on this score. Subsequent amendment to the said Rule does not make effective retrospectively from the period 2003 and does not cover the disputed period in this case. Thus on both grounds the demand in respect of Annexure A items is not liable to be maintained. The demand is not sustainable. Thus I find no merits in the appeals filed by the revenue. Accordingly rejected. CO filed by the assessee respondent is disposed of. (Dictated in Court)
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2007 (4) TMI 463 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Captive consumption ... ... ... ... ..... hat the applicants have made out a strong prima facie case on the basis of Notification 5/98-C.E. dated 2-6-1998 in terms of serial No. 265 read with condition No. 51 of the notification which exempts goods falling under any chapter (other than electrical stampings and laminations, bearings and winding wires), if they are used in the manufacture of centrifugal pumps, turbine pumps, submersible pumps and axial and mixed flow vertical pumps inter alia within the factory of production and there is no dispute prima facie that condition No. 51 has been satisfied by the applicants in the present case. We, therefore, waive pre-deposit and stay recovery of the amounts involved, pending the appeal. (Pronounced in Court)
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2007 (4) TMI 461 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Dobby cards ... ... ... ... ..... authority has held that the Dobby Cards were capital goods and that there is no bar to availment of credit even if the capital goods are used in manufacturing exempted goods, in the light of the Tribunal rsquo s Order in the case of Hero Cycles Ltd. v. CCE, Ludhiana in 2004 (165) E.L.T. 540 (Tri.-Del.) and we also note that the department itself has extended the benefit of Notification No. 67/95 to Dobby Cards used by the applicants as seen from orders dated 5-5-06 of Commissioner (A) Nashik and dated 28-3-2005. 3. emsp We, therefore, waive the pre-deposit and stay recovery pending the appeal. (Dictated in Court)
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2007 (4) TMI 460 - CESTAT, MUMBAI
Stay/Dispensation of Pre-deposit - Cenvat/Modvat ... ... ... ... ..... les, 2002/2004 is ruled out. Prima facie the provisions of Rule 16(1) are not attracted as in this case the bottles have not been received for the purpose of re-making, refining, re-conditioning or for any other purposes as contemplated under the said rule. They were received back in the usual course of business for the purpose of re-filling and there was temporary transfer of the bottles to a sister unit who at that time was short of the bottles required by it. Even otherwise when the applicants have not taken any credit at the time of return of the used bottles, the question of reversing the same while transferring the bottles to another unit prima facie does not arise. We therefore hold that the applicants have been able to make out a prima facie case in their favour so as to call for complete waiver of duty and penalty imposed and we accordingly waive pre-deposit of both duty and penalty imposed and stay recovery thereof till disposal of the appeal. (Pronounced in Court.)
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2007 (4) TMI 458 - CESTAT, MUMBAI
Demand - Non-fulfilment of condition in exemption notification ... ... ... ... ..... onfirmed along with penalty on the manufacturer-respondent. On being challenged by the respondent, the Commissioner (Appeals) dropped the demand along with penalty observing that the liability to export the goods to be fastened to the merchant exporter but not the manufacturer. Aggrieved by the said finding the department is in appeal. 2. emsp On perusal of the Notification No. 42/2001-C.E. (N.T.), dated 26-6-2001 it is revealed that the manufactured goods can also be exported through merchant exporter and this facility is provided under Notification. The manufacturer cannot be saddled with the payment of duty for non-fulfilling the condition by the merchant exporter. It is also settled in the case of Kishore Pumps Ltd. v. Commissioner of Central Excise, Pune, 2004 (173) E.L.T. 45 (Tri. - Mumbai) that duty cannot be demanded from assessee manufacturer. Therefore, there appears to be no merits in the appeal filed by the revenue. Accordingly appeal rejected. (Dictated in Court)
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2007 (4) TMI 456 - CESTAT, MUMBAI
Interest and penalty ... ... ... ... ..... the assessee of having not committed willful misstatement, fraud etc. still they levied interest amount under Sec. 11AB of the Central Excise Act, 1944 which appears to be not correct. So also penalty amount of Rs. 10,000/- imposed under Rule 13 of Cenvat Credit Rules, 2002. As a matter of fact the assessee has already paid Rs. 74,888/- vide PLA Entry No. 129 dated 7-10-03. I am of the further view that Rule 13 of Cenvat Credit Rules, 2002 is equally not applicable since it is not a case of wrong availment of Cenvat credit The ingredients of Rule 13 of Cenvat Credit Rules, 2002 are no way attracted. Therefore, the interest sought to be levied under Sec. 11AB and penalty imposed under Rule 13 of Cenvat Credit Rules, 2002 are hereby set aside. Further the assessee is liable to pay differential amount of Rs. 2,000/- as ordered towards original demand. Accordingly this appeal is allowed while setting aside the impugned order in respect of interest and penalty. (Dictated in Court)
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2007 (4) TMI 452 - CESTAT, CHENNAI
Demand - Interest ... ... ... ... ..... intendent rsquo s letter is not appealable is patently erroneous. 5. emsp In the result, I set aside the impugned order as well as the demand of interest raised against the appellants in the Superintendent rsquo s letters dated 4-9-2004 and 3-4-2007. The case is remanded to the jurisdictional Assistant Commissioner/Deputy Commissioner for correct quantification of interest which is liable to be paid by the appellants from 1-4-2003. While doing so, the Assistant Commissioner/Deputy Commissioner shall have due regard to the Rajasthan High Court rsquo s ruling in Lucid Colloids rsquo case. In other words, the adjudicating authority must proceed on the premise that the provision struck down by the Hon rsquo ble High Court did not exist during the material period. Needless to say that the appellants shall be given a reasonable opportunity of being heard as to the law applicable to the case. 6. emsp The appeal stands allowed by way of remand. (Dictated and pronounced in open court)
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2007 (4) TMI 450 - CESTAT, MUMBAI
... ...
... ... ..... is accepted that Rs. 1,100/-recovered from the merchant exporter also included an element of excise duty, once an amount has not been recovered as representing duty as is evident from the invoice, the applicability of section 11D does not arise. The rate of duty shown in the invoice is only for the purpose of quantifying duty so that in case the goods are not exported, the quantified duty shall be recovered from the merchant exporter in terms of bond. We also find from the original order of Commissioner (Appeals), that duty confirmed against the merchant exporter was also recovered from the respondents. In such a situation, when the duty has also been recovered from the respondents, the question of recovering from them, the same amount on the ground that what they recovered represented the duty which was not paid to the Government is self contradictory. In view of this, we find no merit in the Revenue rsquo s appeal and accordingly the same is dismissed. (Pronounced in Court)
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2007 (4) TMI 449 - CESTAT, MUMBAI
Show cause notice - Validity of - Cenvat/Modvat - Capital goods ... ... ... ... ..... ions. We find that the appellants rsquo case is squarely covered by the decision of the Tribunal in the case of Sunrise followed by the other two decisions (cited supra). The decision of the Apex Court referred to by the learned DR is not relevant as it related to interpretation of an exemption notification and subsequent amendment which was of a clarificatory nature and was held to have retrospective effect. In the present case the show cause notice has not been issued under the new provision at all and therefore the substituted provision having retrospective effect, if at all, does not arise. In the present case show cause notice has been issued under the provisions which were not in existence at the time of issuance of show cause notice and therefore the question of having this provision retrospective effect does not arise. 5. emsp In view of the same, we allow the appeal without going into the other issues and set aside the order of the Commissioner. (Pronounced in Court)
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2007 (4) TMI 448 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... racteristics of a lease as defined in the Transfer of Property Act and that the same has always been regarded as a lease in this country in the legally accepted sense. Against this background, we have perused the relevant agreements and, prima facie, it appears to us that the transaction embodied therein partakes the character of ldquo mining lease rdquo . In this view of the matter, we take the prima facie view that the requirement of para 4(i) of the Notification stood satisfied in this case and there was no cause of action for any demand of duty on the capital goods. The case putforth by learned Counsel is on a footing different from the case considered by this Bench in G.T.P. Granites (supra). The question whether Rule 20(3) ibid was invocable for demanding duty from the appellants is reserved for consideration. 5. emsp In the result, there will be waiver of predeposit and stay of recovery in respect of the duty and penalty amounts. (Dictated and pronounced in open Court)
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2007 (4) TMI 447 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Demand and penalty ... ... ... ... ..... deposit and stay of recovery in respect of the amount of DEPB credit sought to be recovered under the impugned order. The SCN proposed a penalty under Section 114A of the Customs Act and the adjudicating authority imposed one under Section 114 of the Act. The authority felt that he had no fetter in the matter, whereas, in law, he was fettered in the matter. It was not open to the adjudicating authority to travel beyond the scope of the SCN to impose a penalty under a provision not even suggested or proposed in the relevant SCN. Hence there will be waiver of predeposit and stay of recovery in respect of the penalty as well. 6 . emsp The applications stand allowed and waiver of predeposit and stay of recovery are granted. 7. emsp Having regard to the high stake involved in the case, we accept the learned SDR rsquo s suggestion (which is not opposed) that the appeal be disposed of out-of-turn. Accordingly, the appeal is posted to 4-6-2007. (Dictated and pronounced in open Court)
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2007 (4) TMI 445 - CESTAT, MUMBAI
Adjudication - Order of Dy. Commissioner - Jurisdiction ... ... ... ... ..... d. v. CCE, Delhi 2005 (181) E.L.T. 339 (S.C.) the Hon rsquo ble Supreme Court has held that the administrative direction of the CBEC allocating different works to various classes of officers cannot cut down jurisdiction vested in them by statute and may be followed by them at best as a matter of propriety. In the case of CCE, Jaipur v. Jaypee Agro Chemical Ltd. and Ors., 1999 (109) E.L.T. 819 (T) 1998 (27) R.L.T. 681 the Tribunal dealt with the specific issue in dispute in the present case and held that Board rsquo s circulars fixing monetary limits have administratively limited the powers and can at best be treated as administrative irregularity and cannot be treated as legal infirmity. 4. emsp In the light of the above decisions we hold that that there was no legal infirmity in the Dy. Commissioner adjudicating the notice involving amounts in excess of monetary limits, and thus set aside the impugned order and allow the appeal. (Pronounced and dictated in Court on 2-4-2007)
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2007 (4) TMI 444 - CESTAT, NEW DELHI
Order - Appealable order - Cenvat/Modvat - Transfer of credit ... ... ... ... ..... l the record. It is seen from the letter dated 25-5-2004 that the Superintendent of Central Excise ordered that suo motu Modvat credit transferred by the respondents is inadmissible. The respondent was being aggrieved with the said direction issued under the letter dated 25-5-2004, filed appeal before Commissioner (Appeals). Section 35A of the Central Excise Act, 1944 provides that any person aggrieved by any decision or order passed by the central excise officer below in rank than the Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals). In this case, the respondent is aggrieved with the direction of the Superintendent of Central Excise who is a proper officer under the Central Excise Act, 1944. So, the direction issued by the Superintendent of Central Excise by his letter dated 25-5-04 is an appealable order. Therefore, I do not find any merit in the appeal of the Revenue. The appeal is rejected. (Dictated and pronounced in open court).
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