|
Advanced Search Options
Central Excise - Case Laws
Showing 101 to 120 of 196 Records
-
2014 (6) TMI 518 - DELHI HIGH COURT
Ex gratia reward - identity of informer - Evasion of CENTRAL Excise duty - Reward Policy dated 20.06.2001 - Whether reward can be claimed as a matter of right - Held that:- The question of identity of the informer, in the opinion of this Court, at least at this stage cannot arise because what was found in the sealed envelope corresponds entirely with the translation of the document placed on record along with the Writ petition
An analysis of the Policy would reveal that it consolidates existing practices and policies prevailing in the three departments and outlined the eligibility for granting rewards to informants - petitioner provided what is characterised by the respondents themselves as ‘basic information’. During the submissions, learned counsel had relied upon certain show cause notices sought to have been issued to JV Industries’ sister concern to show that parallel line of investigation existed. Yet the proximity of the information provided by the petitioner on 12.11.2007 and the subsequent raid, which took place in December, 2007, in the opinion of this is Court decisive for a conclsion that the basic information provided in this case was also of a significant character. Therefore, it is held that the petitioners claim could not have been brushed aside in the manner that is sought to be urged by the respondents in the present case..
Given the nature of the discretion which the competent officials have under Rules 5 & 6.3 of the 2001 policy, all that can be said at this stage is that the denial of the petitioners’ representation on the ground of her being unable to establish identity and that she had only provided basic information which was insufficient to generate Interim Reward is not sustainable in law. As to whether the respondents would in the light of this finding wish to grant Interim Reward during the pendency of CESTAT proceedings as they appear to have done in the case of their own officers or await the decision of the CESTAT, is left to the discretion of the authorities who shall after considering all the materials available on record, pass appropriate orders and communicate the same directly to the petitioner within four weeks. - Decided in favour of appellant.
-
2014 (6) TMI 516 - CESTAT MUMBAI
Denial of refund claim - Unjust enrichment - Closure of 1 unit - Certificate surrendered - Held that:- when a unit has been closed in the year 2006 and there is no activity going on, if any payment is made in that account, the question of bar of unjust enrichment does not arise at all. Both the lower authorities have not examined the provisions of law. They merely relied on the decision of Sahakari Khand Udyog Mandal Ltd. - [2005 (3) TMI 116 - SUPREME COURT OF INDIA]. In fact, in this case the facts of Sahakari Khand Udyog Mandal Ltd. are not relevant at all. In the present case the duty has been paid wrongly in the PLA of a closed down unit which was not required to be paid, therefore bar of unjust enrichment is not applicable - The adjudicating authority is directed to sanction the refund claim within 7 days of receipt of order - Decided in favour of assessee.
-
2014 (6) TMI 515 - CESTAT MUMBAI
Duty demand - P.D. pumps - one of the pumps are flame proof and other is used for liquid other than water also - Denial of benefit of Notification Nos. 54/93-C.E., dated 28-2-1993, 46/94-C.E., dated 1-3-1994 and No. 56/95-C.E., dated 16-3-1995 - whether the appellants are entitled for the benefit of the Notifications which provide nil rate of duty in respect of P.D. pumps primarily designed for handling water - Held that:- Notification No. 54/93-C.E., dated 28-2-1993 provides nil rate of duty in respect of the pumps classifiable under Chapter Heading 84.13 of the Central Excise Tariff “primarily designed for handling water”. The other notifications are similarly worded. The product literature produced by the appellant shows that the pumps in question are not exclusively designed for handling water as one the pumps are flame proof and other is used for liquid other than water also. The product literature also shows that these are cleared to various industrial consumers.
The pumps in question cannot be said to be primarily designed for handling water. Hence the appellants are not entitled to the benefit of the Notifications in question which provide nil rate of duty in respect of the pumps which are primarily designed for handling water. - appellants filed classification lists on 1-3-1993, 1-4-1994 and 16-3-1995 and clearing the pumps in question at nil rate of duty by claiming the benefit of Notifications. In view of this, the allegation of suppression with intent to evade payment of duty is not sustainable. Hence the demand beyond the normal period of limitation is not sustainable and set aside. - Decided in favour of assessee.
-
2014 (6) TMI 514 - CESTAT AHMEDABAD
100% EOU - waiver of pre-deposit - paper waste aggregated in the factory premises - Held that:- Appellant cannot clear the said paper to DTA due to the amendment to the policy. We find that the appellant’s own case [2012 (10) TMI 499 - CESTAT, AHMEDABAD] which is held that the appellant is a EOU and segregation of the scrap in his factory would be amounting to manufacture as per the provisions during the relevant period. If that be so, the clearance of paper waste in the DTA would be permissible under the Foreign Trade Policy during the relevant period. We are of the view that the appellant has made out a prima facie case for the waiver of the pre-deposit of the amounts involved. Accordingly, the application for waiver of pre-deposit of the amounts involved is allowed and recovery thereof stayed till the disposal of appeal - Stay granted.
-
2014 (6) TMI 513 - CESTAT AHMEDABAD
Waiver of pre-deposi - Fixure of MRP on boxes - Held that:- Adjudicating authority has clearly recorded in his finding that the appellant is not affixing RSP on their boxes. As regards the goods imported by the appellant, the same goods are cleared from customs area on payment of customs duty and CVD. It is common sense that CVD is discharged on the said products only if the RSP is affixed on the said boxes. At this juncture, we find that the appellant is able to make out prima facie case for waiver of pre-deposit of amounts involved. Accordingly, the applications for waiver of pre-deposit of amounts involved is allowed and recovery thereof stayed till disposal of appeals - Stay granted.
-
2014 (6) TMI 488 - CESTAT NEW DELHI
CENVAT Credit - Penalty u/s 11AC - Held that:- demand to be barred by limitation. The credit was availed by duly reflecting the same in the Central Excise records, in the month of June 2004, whereas the show cause notice stand issued on 15.05.2009. The assessee who availed credit on the basis of proper invoice issued by registered dealer, & cannot go beyond the registered dealer to find out as to whether the credit availed by them is proper or not. As per law, he is required to recognize his immediate supplier of the goods. In such a scenario, no suppression or mis-statement can be attributed to the appellants. Accordingly, I hold the demand to be barred by limitation - Decided in favour of assessee.
-
2014 (6) TMI 487 - CESTAT NEW DELHI
Duty demand - Utilization of lapse credit for payment of duty - Assessee contends that inasmuch as the duty liability arose in the month of March, 2008 itself and if they would have paid the same at the time of raising the invoices they were in a position to utilize the said credit. The duty could not be paid in the month of March, 2008, inadvertently and as such, the credit should be allowed to be utilized for payment of duty subsequently in the month of June 2008 - whether the credit which has already lapsed as on 1.4.08, can be used for payment of duty in the month of June, 2008, even in respect of clearance effected prior to 1.4.2008.
Held that:- in terms of provisions of Rule 8 of Central Excise Rules, 2002, the duty liability in respect of goods cleared in March, 2008 is to be discharged in the month of March, 2008 itself. If the assessee defaulted in payment of duty beyond 30 days from the due date, he is debarred from utilizing the Cenvat credit. As per the appellants himself, the duty liability arose in the month of march, 2008 and the same was discharged beyond the period of 30 days in June, 2008. As such, consequence of violation of Rule 8(3A) of the Central Excise Rules, 2002 would flow resulting in denial of utilization of Cenvat credit along with interest and the penal provisions inasmuch as such goods have to be held as having been cleared without payment of duty - Assessee is directed to discharge their duty liability in cash along with interest - However, Penalty is set aside - Decided partly in favour of assessee.
-
2014 (6) TMI 486 - CESTAT AHMEDABAD
Waiver of pre-deposit - violation of principles of natural justice - Opportunity not given for cross examination - Held that:- there is a violation of principles of natural justice due to there being no findings on either granting or rejection of the plea for cross-examination of the persons - Accordingly, without expressing any opinion on the merits of the case, keeping all the issues open, we set aside the impugned order and remand the matter back to the adjudicating authority to reconsider the issue afresh. The adjudicating authority will grant cross-examination of the persons as has been indicated hereinabove in Paragraph 4; and subsequently grant four weeks’ time to the appellant to file a detailed reply. After receiving such detailed reply, the adjudicating authority shall grant an opportunity of personal hearing and come to conclusion on the matter and pass a reasoned order. - Decided in favour of assessee.
-
2014 (6) TMI 485 - CESTAT NEW DELHI
Duty demand - claim of benefit of exemption Notification No.2/95-CE in a case of clandestine removal - Commissioner followed previous decisions and decided in favour of assessee - appellate Commissioner concluded that the as the quantity alleged to have been clandestinely cleared was adjusted by the appellant /assessee under their DTA entitlement as supported by RT-3 return, the assessee was entitled to concessional Duty under Notification No.8/97-CE dated 1.3.97 and the order of the adjudicating authority demanding in excess of the same was set aside.
Held that:- judgment of this Tribunal in appeals preferred by M/s Euro Cotspin Ltd. and another, reported in [2000 (12) TMI 122 - CEGAT, COURT NO. I, NEW DELHI] which is the sole basis for the order of the appellate Commissioner has become inoperative and stood eclipsed. Since this judgment is the only basis for the order of the appellate Commissioner, the impugned order cannot be sustained and is accordingly quashed. The matter is now remanded for fresh consideration on by the Commissioner (Appeals), Central Excise, Jaipur II and shall be disposed of expeditiously - Decided in favour of Revenue.
-
2014 (6) TMI 484 - CESTAT BANGALORE
Exemption under Notification No. 3/2001-C.E., dated 1-3-2001 at Sl. No. 254 read with List 5 - Held that:- according to the Notification No. 3/2001-C.E. Sl. No. 254, non-conventional energy devices/systems specified in List 5 are exempt from payment of duty. It is not the case of the appellant that they have supplied non-conventional energy devices/systems but what they have supplied are only parts. Notification does not provide any exemption to parts supplied for use in non-conventional energy producing devices. Under these circumstances, the rejection of the appellant’s claim for exemption cannot be found fault with and is upheld - Decided against assessee.
-
2014 (6) TMI 483 - CESTAT AHMEDABAD
Waiver of pre deposit - Duty demand - Discharge on sales income - Held that:- Demand is based upon the difference of sales income as indicated in ER-1 and the balance sheet. We find that there is no allegation or evidence to support that there was clandestine manufacture and sale of the goods. Prima facie, the claim of the ld. Counsel that the excess sales was shown in balance sheet for availing additional overdraft from bank seems to be supported by the certificate of the Chartered Accountant. At this juncture, we find that demand of the excise duty can be only on the goods manufactured and cleared from registered premises by an assessee which is absent in this case for differential duty. Accordingly, we are of the view that appellant has made out a case for the complete waiver of the pre-deposit of the amounts involved as indicated hereinabove - Stay granted.
-
2014 (6) TMI 482 - CESTAT NEW DELHI
Denial of the Cenvat credit - area based exemption - benefit of Notification No. 33/99, dated 8-7-1999 - Held that:- provisions of Rule 12 of Cenvat Credit Rules, 2004 are specific to the fact that any clearance made in terms of Notification No. 33/99-C.E., dated 8-7-1999, which entitles the manufacturer to claim refund of duty paid out of PLA would not be treated as exempted goods and the Cenvat credit on such inputs shall be admissible. Commissioner (Appeals) has not taken note of the said Rule, while directing the deposit of Rs. 20 lakhs. As per the learned advocate, his intention was drawn to the same. As regards endorsement, it stand clarified that same is in respect of VAT paid under Assam Value Added Tax Rules, 2005, which requires an assessee to endorse the said words on the tax invoice. This issue was addressed by the Additional Commissioner having jurisdiction over the appellants factory by writing a letter to the Commissioner, Guwahati in response to the said query, vide his letter dated 2-2-2012 clarified that in compliance of Rule 32 of said Assam Value Added Tax Rules, 2005, duplicate copy of the invoice bear the word ‘this copy does not entitle the holder a tax credit”. Inasmuch the said endorsement was in respect of VAT paid in the Assam Laws Added Tax Rules, such endorsement cannot be adopted by the Excise authorities for denial of Cenvat Credit of Excise duty paid on the same. As such, I find that the appellants have a good prima facie case in its favour and no pre-deposit directions should have been made by the Commissioner (Appeals) - Matter remanded back - Decided in favour of assessee.
-
2014 (6) TMI 481 - CESTAT NEW DELHI
CENVAT Credit - Commissioner allowed credit - Held that:- Cenvat credit availed by the appellant on the inputs purchased from a manufacturer while the goods purchased have not resulted out of manufacture in the hands of the seller. There is no evidence to show that amount of duty paid by the appellant has not gone to treasury. Therefore penalizing the appellant to disallow the Cenvat credit may be prejudicial to the interest of justice - Decided against Revenue.
-
2014 (6) TMI 455 - CESTAT AHMEDABAD
Demand of duty - clandestine removal of chhakdo rickshaw - Held that:- appellants having not justified or indicate the reason for seeking the cross-examination before the adjudicating authority, cannot claim that there is a violation of principles of natural justice and more so when he himself remains absent in the adjudication proceedings. On merits, we find that the justification of the appellant that RTO records cannot be sole records to arrive at manufacturing activity is an issue that cannot be decided summarily as the RTO records are State Government records and needs to be given due weightage. In our view, this deeper consideration can be done at the time of final disposal of appeal - stay granted partly.
-
2014 (6) TMI 454 - CESTAT MUMBAI
Modvat credit - Fraudulent availment - Demand of amount equivalent to the credit of duty taken on Naphtha for the entire period - input used for adulteration of petrol, diesel etc - illegal divertion - appellants have manipulated their records to indicate that said Naphtha have been used in the manufacture for solvents - non-production of final product - 22 out of 45, purported purchasers of solvent were found to be non-existent or if in existence they in their statements have said that they never purchased solvent from the appellant - number of bank accounts were opened in Mumbai/Navi Mumbai on behalf of purported existent and non-existent purchasers (who were located in different parts of the country) and large amounts of cash were deposited which in turn were transferred to appellants account as if receipt of sale amount of solvents - transportation of solvents.
Held that:- Whole case is the total silence on the part of the appellants about the financial transactions unearthed by the Revenue. No comments have been made why the bank accounts were opened in Mumbai/Navi Mumbai for the purported buyer in different parts of the country (mostly non existent). How a huge amount were deposited in cash and thereafter transferred to the appellant as payments towards the Beesol, their final product.
No meaningful explanation has been given by them in respect of 22 customers who have purported to have purchased Beesol indicated either such customers are non existent or they have not purchased Beesol or any other solvent from the appellant at all baring two cases wherein the customers have stated that they have purchased, except saying that the said units might have closed down or some of them being traders have stopped the business or taking central excise registration was not essential. The details found during investigation and confronted to appellant are required to be refuted on the basis of solid evidence by the appellant. In the absence of any such refutal, the allegations made by the revenue about the non existence or non purchase by these 22 units have to be upheld.
In the event of not using the inputs in the manufacture of dutiable final products for whatever reason the credit alongwith interest is required to be paid back to the Government and penalty for misuse of facility/trust. The above proposition were covered under different rules at different point of time. In the present case when the irregularities were done the relevant rule was Rule 57I/57AH of the Central Excise Rules, 1944. However, when the Show Cause Notice was issued separate set of Cenvat Credit Rules has come into existence and it became Cenvat Credit Rules. Thus there was no period when the credit of inputs were not allowed and inputs were not to be used in the manufacture of taxable final product and there was no change in the law (except the Rule number or language of the Rule) for the recovery of credit on inputs which were not used in the manufacturing process was concerned
From the investigation it is very clear that the appellants have not used either the whole or part of the Naphtha procured duty free. Naphtha purported to have been used in the manufacture of Beesol and purported to have been sold to 22 customers was definitely not used but diverted. But how much Naphtha has been diverted is not clearly coming out as the appellant did not co-operate in the investigation did not produce ledger account of all the parties so as to enable the Revenue to check up from the banks the money trail. In the circumstances, we are of the view that the ends of justice would be met by (i) disallowing the credit of Naphtha taken which is estimated (based upon input/output ratio) to have been used in the manufacture of Beesols the solvents purported to be sold to the 22 buyers (excluding the few consignments of two of such buyers who have admitted to have purchased one or two consignments); (ii) in respect of the remaining customers, appellants may be given last chance to produce all the invoices as also transport documents and ledger account detailing the banking transaction to enable verification of money trail - matter remanded back - Commissioner to re determine quantum of penalty - Decided against assessee.
-
2014 (6) TMI 453 - CESTAT MUMBAI
MRP Valuation or transaction value - Clearances of tiles - institution buyer - industrial consumers - appellant is discharging duty on these tiles as per the provisions of Sectin 4A - revenue demanded duty on the basis of transaction value under Section 4 - Held that:- Goods are required to be supplied in standard packages consisting fixed number of specified tiles. These packages are the same in respect of retail sale also and on these packages the appellant has declared the MRP. In other words, there is no difference in respect of packages of tiles sold to retail consumers or to the so called institutional buyers and all of them are in standard packages, having MRP declared on them. It is also not in dispute that, on the packages, the appellant has not made any declaration that "the packages are not meant for retail sale or the packages are meant for use by any specified industry". In the absence of such markings on the packages, it cannot be said that the goods supplied were not in retail packages.
In their letter dated 23/02/2012 the Dy. Controller of Legal Metrology, Maharashtra has clarified that according to Rule 3 Packaged Commodity Rules, 2011 the provision regarding mandatory declaration on retail packages are not applicable to the packages meant and marked as industrial/institutional consumers - discharge of duty liability tiles supplied in retail packages to real estate developers / developers, etc. has to be made under Section 4A of the Central Excise Act, 1944. Therefore the impugned demands are not sustainable in law - Following decision of ITEL Industries Pvt. Ltd. vs. Commissioner of Central Excise [2003 (10) TMI 140 - CESTAT, BANGALORE] - Decided in favour of assessee.
-
2014 (6) TMI 452 - CESTAT AHMEDABAD
Confiscation of raw materials - penalty under Rule 209 of Central Excise Rules, 1944 - Held that:- Clear cut finding has been given that raw materials were utilized for the manufacture of finished goods and only the finished goods were held to be subsequently cleared illicitly for which duty was demanded separately. Rule 209 of the Central Excise Rules, 1944 talks of the excisable goods when removed from the factory are only liable to confiscation. In the instant case there is no evidence that raw materials were cleared as such from the factory. Secondly, there cannot be a confiscation of goods which are not available for confiscation. There is no indication in the grounds of appeal whether any appropriate bond undertaking executed by the appellant, existed justifying such confiscation or imposition of redemption fine. Duty with respect to the finished fabrics also stands confirmed - Decided against Revenue.
-
2014 (6) TMI 451 - CESTAT BANGALORE
CENVAT credit - Duty demand on dealer for passing duty when the goods were actually not received - Held that:- Where the CENVAT credit has been [taken and utilised wrongly] or has been erroneously refunded, the same along with interest shall be recovered from the manufacturer or the provider of the output service and the provisions of sections 11A and 11AA of the Excise Act or sections 73 and 75 of the Finance Act, shall apply mutatis mutandis for effecting such recoveries. Therefore, the duty demand upheld by the lower authorities cannot be sustained. - Once the duty demand cannot be sustained, mandatory penalty under Section 11AC read with Rule 15 or 25 also cannot be imposed.
Penalty under Rule 25 CENVAT Credit Rules - Mandatory penalty under Section 11AC - Held that:- The appellant had not chosen to seek cross-examination of both the parties even though their statements were relied upon. Moreover, the appellant has also not rebutted the evidences collected by the Revenue showing that vehicles were either non-existent or transporters fictitious. That being the case, this is a very clear case of supply of invoices and goods source of which is unknown which is something which has not been investigated but learned AR contended that goods from some other source might have been supplied. In any case, what is required to be established by the Revenue is that the appellant-dealer did not receive the goods and this has been established and therefore the contravention of provisions of CENVAT Credit Rules and Central Excise Rules can be said to have been proved. Under these circumstances, there cannot be any penalty on the Managing Director in the absence of a show-cause notice having been issued to him - Decided in favour of assessee.
-
2014 (6) TMI 450 - CESTAT BANGALORE
Denial of refund claim - deemed provisional assessment - period of limitation - Original authority allowed refund claim - Commissioner disallowed refund claim as time barred - Held that:- there was an Order-in-Original No. 60/2005, dated 28-10-2005 passed by the Deputy Commissioner of Central Excise, Yeshwantpur Division, Bangalore in respect of the very same assessee discontinuing the provisional assessment resorted to as per order passed in 2001. In this case, leave alone deemed provisional assessment, we have an order specifically taking a decision that there shall be no provisional assessment in the case of the assessee. The learned counsel drawing attention to para 6 wherein, the submissions made by the appellant that they would not insist on provisional assessment and they would claim refund in case of excess payment and make payment to the Government if there is short payment and therefore they have no objection to the provisional assessement discontinuation have been recorded. This does not help the appellant at all. If they wanted provisional assessment, an order to that effect should have been insisted upon by them. The order passed by the Deputy Commissioner was an appealable order and in fact I find that it has become a consent order because of the submissions made by the appellant themselves. Under these circumstances, the assessment in the case of the appellant cannot be considered as provisional or deemed provisional.
Therefore, the refund claim filed by the appellant for the purpose of limitation under Section 11B of the Central Excise Act, 1944 has to be considered on the basis of the payment of duty at the time of initial clearance and admittedly refund claim was filed beyond the normal period of limitation of one year. Therefore the assessee has failed to make out a case in their favour. - Decided against assessee.
-
2014 (6) TMI 449 - CESTAT NEW DELHI
Denial of CENVAT Credit - Non filing of declaration - Credit utilized for packing of their final product during the course or manufacture - Held that:- There was a declaration though the same may not be detailed and proper declaration. In any case, we find for the provisions of Rule 57G, a new sub-rule (13) was introduced to the effect that credit would not be denied in case of non-declaration if the proper officer is otherwise satisfied about the receipt of the inputs, their duty paid character and utilization in the manufacture of final product. From the records, we note that there is neither allegation much less than any evidence to reflect upon non-duty paid character of the goods nor their non-receipt - Decided in favour of assessee.
....
|
