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Central Excise - Case Laws
Showing 121 to 140 of 246 Records
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2007 (4) TMI 443 - CESTAT, MUMBAI
Refund - Returned goods ... ... ... ... ..... L. In the case of Mexin Medicament (P) Ltd. v. CCE - 1995 (77) E.L.T. 392 (T), it has been held that separate processing of the returned goods is not necessary. In the case of Indian Forgings and Stamping Co. v. CCE - 2001 (134) E.L.T. 507 (Tri.-Kol.) it has been held that the facts like original clearance on payment of duty and subsequent clearance of the same goods on payment of duty is established, the refund claim under Rule 173L is not deniable. In the present case also the respondent assessee had established the fact that they have paid duty at the time of first clearance and again on return of goods, they were cleared once again on payment of duty on 2nd occasion. The same goods cannot be charged twice with the duty element. Therefore, refund of one of the duty paid is permissible. Thus I do not see any error or illegality in the impugned order passed by the ld. Commissioner (Appeals). The Revenue appeal lacks merits, hence rejected. (Pronounced in Court on 30-4-2007)
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2007 (4) TMI 442 - CESTAT, NEW DELHI
Cenvat/Modvat - Inputs sent to job worker after availing credit - Demand - Limitation - Revenue neutrality
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2007 (4) TMI 441 - CESTAT, KOLKATA
Penalty - Quantum of ... ... ... ... ..... d not exceed duty amount or Rs. 10,000/- whichever is greater. In other words, the maximum penalty should be the duty amount and in case the same is less than Rs. 10,000/- then the maximum would be Rs. 10,000/-. I do not find anywhere in the language of the Rule where a minimum penalty has been prescribed. As such, the ground in the Departmental Appeal is not valid. The appeal is rejected. (Dictated and pronounced in the open Court)
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2007 (4) TMI 440 - CESTAT, BANGALORE
Appeal to Appellate Tribunal - Reference to Larger Bench - Withdrawal of - Cenvat/Modvat - Duty paying documents
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2007 (4) TMI 439 - CESTAT, MUMBAI
Demand - Cenvat/Modvat - Reversal of credit ... ... ... ... ..... record the appellants cannot be asked to produce negative evidence. As per earlier permission letter, review is to be done by the date if any malpractice is found with the appellants. It does not mean that permission was going to expire on that date if no review is done. As a matter of fact no malpractice was found as such no review has been done. This will not enable the department to come to the conclusion that the permission granted earlier expired by 28-2-1988. If that was the case the department concerned would not have included the laboratory premises in the registration certificate issued subsequently. Therefore, the demand of duty of various amounts covered by three appeals as well as reversal of Cenvat credit and the penalties confirmed in each case are not liable to be sustained. Accordingly they are set aside as the impugned orders are erroneous. Accordingly all the impugned orders are set aside. In the result all the three appeals are allowed. (Dictated in Court)
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2007 (4) TMI 438 - CESTAT, KOLKATA
Appeal by Department - Grounds of appeal - Non-approval of ... ... ... ... ..... conclusion that mandate of Section 35(2) of the Central Excise Act, 1944 was fulfilled. The note sheet of 11-1-2005 merely reads as ldquo Commissioner may kindly see the draft ground of the appeal placed opposite for approval rdquo . This does not demonstrate whether there was conclusion on the legality or propriety of the impugned order and whether that was examined by the Commissioner so as to file an appeal. The draft ground prepared by some officer without conclusion as required by Section 35B(2) available on the xerox note sheet produced was placed for approval. Such a practice not being mandate of the statute, appeal of the Revenue fails. (Dictated and pronounced in the Court)
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2007 (4) TMI 436 - CESTAT, AHMEDABAD
Production capacity based duty - Abatement of duty on closure ... ... ... ... ..... view that the appellant should have paid full amount and taken abatement later on and for which he relied on the Rule 96ZQ(7)(e) which reads as follows ldquo Rule 96ZQ(7)(e) When the claim for abatement by the independent processor is for a period of less than one month, he shall be required to pay the duty, as applicable, for the entire period of the month and may subsequently seek such claim after payment of such duty rdquo . 4. emsp I have carefully considered the facts of the case. There is no dispute on the facts that during the period from 1-8-2000 to 15-8-2000. Stenter with 4 chambers remained closed and appellants were eligible for abatement. The question whether they should have paid Rs. 7 lakhs and taken refund thereafter is basically a question of procedure. I do not think that the substantial benefit should be denied on this ground. 5. emsp Therefore, the appeal is allowed. Stay petition is also disposed of accordingly. (Dictated and pronounced in the open Court)
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2007 (4) TMI 435 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - SSI Exemption - Clubbing of clearances ... ... ... ... ..... pellant was admittedly a partner in the firm. The appellant as sole proprietor was manufacturing in her factory and was also a manufacturer by virtue of being a partner in the factory of the partnership firm. A partnership firm has no legal entity and when the partners manufacture collectively, then all partners manufacture collectively in the name of partnership firm. There is, therefore, no warrant for total waiver of pre-deposit. 4. emsp Having regard to the facts and circumstances of the case, it is directed that on appellant rsquo s depositing Rs. 1,00,000/- (Rupees One lakh only) within six weeks from today, there shall be waiver of pre-deposit of remaining amount of duty and the amount of penalty payable under the impugned order during the pendency of the appeal. If the amount is not so deposited, the appeal will stand dismissed. This application is disposed of accordingly. Post the matter for reporting compliance on 11-6-07. (Pronounced and dictated in the open Court)
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2007 (4) TMI 433 - CESTAT, CHENNAI
Wire - Copper wire - Exemption - Notification No. 64/95-Cus. - Interpretation of statute ... ... ... ... ..... sideration under exemption Notification is found to be covered by the Notification on strict construction, a liberal approach is permissible in further considerations under the Notification for grant of the benefit thereof to the assessee. The imported item is squarely covered in col. 3 of the Table annexed to the Notification. ldquo DC Micromotor upto 13.5 volts and not exceeding 20 watts rating rdquo is finished goods specified in col. 4 of the said Table. Admittedly, the imported copper wire, along with Stator and Rotor worked as ldquo DC Micromotor rdquo a component of final product (watch). There is no dispute of the fact that, at some stage or stages in the manufacture of watch, a DC Micromotor came into existence. In our considered view, this factual position, presented before the Commissioner by the experts, was rightly taken note of and the benefit of the Notification was fairly allowed to the assessee. The appeal is dismissed. (Dictated and pronounced in open court)
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2007 (4) TMI 432 - CESTAT, MUMBAI
Rebate - Jurisdiction - Appeal - Limitation ... ... ... ... ..... this Tribunal has no jurisdiction to entertain these appeals. The department under bona fide belief that this Tribunal has jurisdiction filed these appeals. These appeals got to be filed before the Joint Secretary to Government of India. Therefore, all these appeals are rejected. It is needless to mention that a party when prosecutes the case before wrong forum under a bona fide belief, the period spent there in would save the limitation if they approach before the new forum. Order accordingly. (Dictated in Court)
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2007 (4) TMI 431 - CESTAT, NEW DELHI
Seizure - Show Cause Notice beyond six months period ... ... ... ... ..... away the power of the Customs Authorities to levy redemption fine if subsequent to release of goods import was found not valid or that there was any other irregularity which would entitle the customs authorities to confiscate the said goods. 10. emsp In the facts and circumstances of the case. I modify the impugned order and direct the Commissioner to release the seized goods forthwith upon undertaking from the appellant as per aforesaid provisions of the Foreign Trade Policy 2004-09. At this stage, the learned DR submits that the release of the goods shall not take away the rights of the authority to issue the show cause notice. Needless to say, the show cause notice may be issued even after release of the seized goods in accordance with law. I make it clear that this order is passed without going into the merits of the case as the matter is pending before the investigating agency. Thus, the appeals are allowed in the above terms. (Dictated and pronounced in the open Court)
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2007 (4) TMI 430 - CESTAT, MUMBAI
Stay/dispensation of pre-deposit - Remission of duty ... ... ... ... ..... n the decision of Tribunal in the case of Ginni Filaments Ltd. v. Commissioner of Central Excise, Lucknow - 2005 (188) E.L.T. 45 (Tri. - Del.). As seen from the facts of that case a 100 EOU manufacturing the goods having cleared for export by stuffing in a container during its transit from the appellant rsquo s factory to the port, the truck could not reach the port of export and the container was misplaced. In that circumstances while interpreting Rule 49 of Central Excise Rules, the Bench held that amounts to removal of the goods from the factory, as such no remission can be considered. Therefore, this decision stands on a different footing. 3. emsp In the aforesaid circumstances I am of the view that appellants have strong prima facie case where by the impugned order can be stayed pending disposal of the appeal. Accordingly implementation of the impugned order is stayed pending disposal of the appeal. Application is allowed. List the appeal in its turn. (Dictated in Court)
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2007 (4) TMI 429 - CESTAT, MUMBAI
Refund of interest - Cenvat/Modvat ... ... ... ... ..... re manufacturer of motor vehicle parts, to their job workers for further processing is permissible in terms of Rule 4(5)(a) of the Cenvat Credit Rules, 2002, which provides that Cenvat credit shall be allowed even if any inputs or capital goods as such or after being partially processed are sent to a job worker for processing, reprocessing, testing, repair, re-conditioning or any other purpose, and by Board rsquo s Circular No. 637/28/02-CX., dated 8-5-2002 stating that the capital goods may be sent to the job worker rsquo s premises for production of goods in terms of Rule 4(5). Since the capital goods were dispatched on 31-3-2004 and reversal of credit took place on 26-7-2004, i.e. within the 180 days limit provided in the Rule, no interest is payable. Therefore, the respondents have rightly been held to be entitled to refund of interest paid. 3. emsp In the light of the above discussion, we uphold the impugned order and reject the appeal. (Dictated and pronounced in Court)
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2007 (4) TMI 428 - CESTAT, AHMEDABAD
Rectification of mistake - Penalty ... ... ... ... ..... uld not have led the Bench to a finding, which the Tribunal has arrived at, cannot be called to be a mistake. It is well established that review of the order cannot be sought under the garb of ROM application. 6. emsp Similarly, we find no merits in the applicant rsquo s plea that in view of the Larger Bench rsquo s decision, the entire penalty should have been set aside, instead of reducing the same. Apart from the fact that the Bench has found sufficient reason to reduce the penalty and not set aside the same in totality, we find that the Larger Bench rsquo s decision of the Tribunal stands overruled by the Hon rsquo ble High Court of Punjab and Haryana as reported in 2006 (202) E.L.T. 398 (P and H) 2006 (4) S.T.R. 177 (P and H). In any case, the decision of the Bench in reducing the penalty and not setting aside the same in its totality cannot be called a mistake, requiring any rectification. 7. emsp In view of the above, we reject all ROM applications. (Dictated in Court)
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2007 (4) TMI 426 - CESTAT, NEW DELHI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... to the satisfaction of the Assistant Commissioner that the inputs have been received in his factory and the duty was paid on such inputs. The Commissioner (Appeals) observed that if it is accepted the contention of the appellant that credit has been taken on the basis of original copy of invoice even then as per CEGAT judgment, credit is not available as proper procedure for regularization has not been followed. 4. emsp The Hon rsquo ble Punjab and Haryana High Court in the case of Ralson India Ltd. (supra) held that credit taken on the basis of original copy of invoice cannot be denied on the ground that same was taken without taking /applying for required permission of competent authority. So, in view of the decision of the Hon rsquo ble Punjab and Haryana High Court, I do not find any merit in the order of the Commissioner (Appeals). Accordingly, the impugned order is set-aside and the appeal is allowed with consequential relief. (Dictated and pronounced in the open Court)
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2007 (4) TMI 423 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
Settlement of case - Cenvat credit wrongly availed ... ... ... ... ..... y, balance amount shall be paid by the main applicant within 15 days of the receipt of intimation from Revenue and compliance reported both to the Bench and Revenue. However, if the said deposit comes out to be higher than the aforesaid amount of interest, the left over balance shall be refunded to the main applicant. (c) Immunities from penalty and prosecution under the provisions of Central Excise Act and Rule framed thereunder, as applicable, are granted both to the main applicant and the co-applicant, subject to payment of dues as per this Order. The aforesaid immunities are granted under Section 32K(1) of the Act. This Order shall be void and immunities withdrawn if, the Bench finds, at any time, that any particular material to the settlement had been concealed or false evidence was given or the Settlement Order was obtained by fraud or misrepresentation of facts. Attention is drawn to sub-section (9) of Section 32F and sub-sections (2) and (3) of Section 32K of the Act.
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2007 (4) TMI 421 - CESTAT, MUMBAI
Interest - Rebate - Fraudulently claimed rebate ... ... ... ... ..... s prevailing at the time of initiation of proceedings. Ld. DR emphasizes that as on the date of issue of show cause notice the provisions under Sec. 11AB of Central Excise Act was very much in force as such the interest is chargeable on the assessee. After considering the point at length, I am of the view that there is no substance in the contention raised by the revenue. Because the period of dispute relates to prior to the introduction of Sec. 11AB of the Central Excise Act. Mere because the show cause notice was issued after introduction of the said provision, it does not tantamount to legal recovery of the interest amount in absence of the said provisions in the Act at the period under dispute. Therefore, I am of the view that there should be a right in favour of the party to enforce the same not only at the time of initiation of the proceedings but also cover the period under dispute. Thus the revenue rsquo s appeal lacks merits. Accordingly rejected. (Dictated in Court)
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2007 (4) TMI 420 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... hanically transmitted and is not generated by human or animal agency. In this situation, the Hon rsquo ble High Court held that sweets are manufactured with the aid of power. In the present case, we find that as per provisions of the notification in question, there was no provision that the definitions of Factories Acts are applicable. Further, the applicants pointed out that earlier board issued circular in respect of manufacture of furniture and sweets where it has been clarified that the such goods manufactured with the aid of gas does not amount to use of power in the process of manufacture. Keeping in view of the above facts and circumstances the applicant has prima facie strong case in there favour therefore, the pre-deposit of the duty and penalty is waived for hearing of the appeal. Stay application is allowed. However, taking into consideration, registry is directed to list the appeal in the cause list from 30th April 2007. (Dictated and pronounced in the open Court)
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2007 (4) TMI 418 - CESTAT, MUMBAI
Demand - Discrepancy in quantity of goods ... ... ... ... ..... ls v. Commissioner of Central Excise, Delhi, 2005 (183) E.L.T. 412 (Tri.-Del). In the above case the Tribunal has remanded the matter once back to the adjudicating authority to find out whether there exist trade practice either in sending the goods in excess weight or shortage. There was a finding to the effect that no such trade practice exists. There after the Tribunal has taken a decision that the duty is liable to be paid as per the actual weighment. This is the latest judgment on the subject. 2. emsp Having considered the rival contentions it felt expedient to remand this matter back to the Commissioner (Appeals) for de novo proceedings. The Commissioner (Appeals) shall take into consideration all the submissions made by both the parties including the case law now cited before me and that may be sought to be produced before him. Thus keeping all the issues open, the matter is remanded back. In the result the appeal is allowed in remand in above terms. (Dictated in Court)
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2007 (4) TMI 417 - CESTAT, AHMEDABAD
Refund - Unjust enrichment ... ... ... ... ..... e manufacturer cannot be a ground for denying refund to the manufacturer. 16. emsp The word lsquo buyer rsquo used in Section 12B also cannot be construed as referring to the ultimate consumer. The buyer referred to therein in the normal circumstances is the buyer who buys the goods from the person who has paid duty. rdquo 5. emsp In the light of above, the view taken by the original authority as upheld by Commissioner (Appeals) that the duty benefit claimed should have been passed to the ultimate customer is not envisaged. 6. emsp It is, however, noticed that the aspect whether the duty burden was passed on by the manufacturer to the dealers who are the buyers has not been examined by the lower authority. 7. emsp Therefore, the order of Commissioner is set aside and the matter remanded to the original authority for fresh consideration of the refund claims after examining as to whether the manufacturer has passed on the duty burden to the dealers or not. (Pronounced in Court)
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