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Central Excise - Case Laws
Showing 61 to 80 of 246 Records
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2007 (4) TMI 546
Stay of order - Special auditing by a Cost Accountant ... ... ... ... ..... ounts was not such which would require appointment of special auditors and that what the Assessing Officer considered to be complex is in fact not so. It was also open to him to show that the same would not be in the interest of the Revenue. 4. emsp In the present case, admittedly the appellant was never put to notice about the direction issued under Section 14A. Moreover, in the impugned order, beyond repeating the language of Section 14A by stating that the value was not correctly declared or determined by the appellant, no particulars were at all given about either the declaration, or determination of value for which, he was required to form the opinion. The appellant has, therefore, made out a prima facie case for interim stay of the impugned order. The impugned order is, therefore, stayed during the pendency of this appeal. This application is, accordingly allowed. The appeal is ordered to be fixed for final hearing on 25-6-07. (Pronounced and dictated in the open Court)
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2007 (4) TMI 545
Cenvat/Modvat - Re-export ... ... ... ... ..... of excise if the inputs or capital goods are removed as such from a factory. It has been pointed out that there may a situation where the input or capital goods are exported. Doubt has been expressed whether such export clearances have to be made only on payment of duty. In this context, it is clarified that under the excise procedures, a manufacturer can export the goods under bond without payment of duty. This is a facility that is available to the manufacturer under the excise procedure. In such case, the appropriate duty of excise that is payable is lsquo nil rsquo . Therefore, there is no bar for a manufacturer to remove the inputs or capital goods for export under bond within the Explanation referred to above. rdquo 7. emsp In the light of the above and in the light of the decision of the Tribunal in the case of RFH Metal Castings (P) Ltd. the appeal deserves to be allowed. 8. emsp I allow the appeal with consequential relief. (Dictated and pronounced in the open Court)
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2007 (4) TMI 544
Stay/Dispensation of pre-deposit ... ... ... ... ..... duty payable under the impugned order within eight weeks from today failing which the appeal will stand dismissed. 2. emsp This application is disposed of accordingly. Post the matter for reporting compliance on 26-6-07. (Pronounced and dictated in the open Court)
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2007 (4) TMI 543
Compounded Levy Scheme - Demand ... ... ... ... ..... nufactured goods, the same are liable to be cleared on payment of duty, and could not have been cleared under compounded levy scheme. 2. emsp We have considered the submissions. We find that the respondents in reply to the show cause notice have clearly stated that the quantity lying in loose condition was either in the water or awaiting dyeing. Physical stock was also verified by the department. The Revenue in appeal has not produced in any evidence to show that the goods were fully finished and in fact their plea that the entire stock was shown in BSR is contrary to the findings of the Commissioner (Appeals) according to whom the goods were shown as lying in finishing room. No evidence has been produced to show that this quantity was indeed lying in the BSR. In view of this, loose quantity which was waiting certain processing cannot be considered as fully manufactured and accordingly was not liable to duty. The Revenue appeal is accordingly dismissed. (Pronounced in Court.)
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2007 (4) TMI 541
Demand - Cenvat/Modvat ... ... ... ... ..... verification for such huge quantity of tyres of so great varieties in the time taken by the officers. The contention of the respondents appears to be proper as there is no necessity to remove a small quantity of tyres clandestinely. The respondents alleges that the copy of panchnama of stock taking of tyres are not furnished to them. They have requested for the documents showing details of stock verification carried out by the officers, such as size-wise stock, differences observe, separately in each size of tyres etc. This would help them to verify the stock of excise in reconsideration. The respondents organization is a big organization. It is not possible to take the stock of the situation of the huge quantity within a day. 10. emsp Thus I am of the opinion that the impugned order passed by the ld. Commissioner (Appeals) is no way erroneous and the same is liable to be upheld. In the result appeal is dismissed. Cross objection is allowed. (Pronounced in Court on 13-4-2007)
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2007 (4) TMI 539
Deemed credit - Recovery of ... ... ... ... ..... ,000/- payable from PLA or by cash. When the consignment gets exported, the net outflow from the Deptt. is Rs. 4,000/- as rebate. At the rate of 10 , the gross duty payable is Rs. 10,000/-, with the credit available being Rs. 6666.60 and net duty payable by cash or by PLA is Rs. 3333.30. When the consignment gets exported the net outflow from the Deptt. is only 3333.30. Hence, this is not a case of revenue neutrality. 6. emsp Anyhow, the issue to be decided is whether the appellant was correct in adopting 12 rate of duty and taking higher credit on that basis. As the rate of duty applicable is only 10 , the credit taken applying 12 rate of duty is erroneous and such deemed credit taken in excess is recoverable in terms of Rule 13 of Cenvat Rules. Therefore, the order of Commissioner in confirming recovery of erroneous credit is legally sustainable. As regards the penalty, the Commissioner has already set aside the same. 7. emsp Appeal is, thus, rejected. (Pronounced in Court)
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2007 (4) TMI 538
Appeal before Commissioner (Appeals) - Limitation ... ... ... ... ..... y notice was served upon to Director at his residence and at the request of the applicant the adjudication order was supplied to them on 24-1-03. In view of these admitted facts that the premises of the applicants was lying closed since long and there was no responsible person in the factory to receive the order, therefore, we find that the date of service of the order is to be taken when the copy of the order was supplied to the applicants at their request. From the date of supply of the copy of the order, the applicant filed the appeal on 19-2-03 which is within the normal period of limitation. Therefore, the impugned order whereby the appeal filed by the applicant was as time-barred is set aside and the matter is remanded to the Commissioner (Appeals), after waiving the pre-deposit of duty and penalty to decide the appeal on merits after affording an opportunity of hearing to the appellant. The appeal is disposed of by way of remand. (Dictated and pronounced in open Court)
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2007 (4) TMI 536
Appeal to Appellate Tribunal - Delay of 75 days in filing - Condonation of ... ... ... ... ..... parties do not resort to dilatory tactics, but seek their remedy promptly. It has further been observed that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. In every case of delay, there can be some lapse on the part of the litigant concerned that alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put-forth as part of a dilatory strategy the Court must show utmost consideration to the suitor. 2. emsp By applying the above observation to the facts of the present case, we note that the entire duty was deposited by the appellants and, as such, delay in filing of appeal could not be dilatory tactics on behalf of the appellants so as to be benefited by such delayed filing of appeal. As such, by accepting the reasons forwarded as satisfactory, we condone the delay in filing the present appeal and allow the COD application accordingly. (Dictated in Court)
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2007 (4) TMI 535
Appeal - Limitation - Delay in filing - Condonation of ... ... ... ... ..... re removed which include submission of draft dated 5-4-2006. But the Registry returned the appeal papers by letter dated 8-8-2006 without considering the documents filed by the applicant. He submits that then the applicant filed fresh appeal on 2-3-2007. 3. emsp Heard the learned authorized representative (DR) for the Revenue. 4. emsp After hearing both the sides and on perusal of the records, I find that the applicant filed the appeal within the stipulated period which was returned by the Registry by its letter dated 8-8-2006. It is seen from the record that the applicant removed the defects before issue of the letter dated 8-8-2006 by the Registry. Therefore, the applicant have made out a case for condonation of delay in filing the appeal. Accordingly, the application is allowed and delay is condoned in filing of the appeal. Registry is directed to fix the matter for hearing in its due course. Application for COD is allowed. (Order dictated and pronounced in the open Court)
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2007 (4) TMI 534
exemption under Notification No. 1/95-C.E. ... ... ... ... ..... furnace oil having been used as a fuel for the boilers. The boilers generated steam and the latter was used in the drying stage of the process of manufacturer of Instant Tea Powder. The furnace oil was, thus, consumed in the process. It fell in the category of consumables indisputably and undisputedly too. Therefore, we hold that the furnace oil brought into the EOU and used in the boilers during 1-1-2000 to 21-5-2000 was exempt from payment of Central Excise duty in terms of Entry No. 7 of Annexure-I to Notification No. 1/95-C.E., dated 4-1-95. rdquo Similar view has been expressed in the case of Jayant Agro Organics Ltd. cited supra. 5. emsp The ratio of the above decisions are applicable to the present case. Therefore, we hold that no valid grounds have been adduced to interfere with the findings and reasonings of the Commissioner. 6. emsp Therefore, the appeals by the Department are rejected. The cross-objection is also disposed off accordingly. (Pronounced in open Court)
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2007 (4) TMI 533
Demand - Endorsement made on bills of entries ... ... ... ... ..... hat when the writ petition was finally disposed of, there was no order directing that the duty demand shall be paid together with interest. In other words, there was no continuation of the interim order for payment of interest in the final order of the High Court. When the matter was taken up before the Hon rsquo ble Supreme Court, the Apex Court only directed payment of interest by the Revenue in the event of the Revenue failing before the Supreme Court. There was no direction that in the event of the assessees failing in the appeal before the Apex Court, they would be liable to pay duty amount together with interest. In these circumstances, we cannot bring ourselves to agree with the stand of the Revenue that the order for payment of interest can be sustained for the reason that it can be traced to the interim order of 1986 of the Bombay High Court. We, therefore, set aside the demand for interest. 9. emsp The appeal is thus partly allowed. (Pronounced in Court on 10-4-2007
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2007 (4) TMI 531
Demand - Limitation - Interest and penalty ... ... ... ... ..... se notice was issued on 28-2-2004 for demand pertaining to September, 2002. The Commissioner (Appeals) has noted that the Department was either lost sight of this case or was itself not convinced as to whether interest and penalty to be imposed or not. He has also noted that the show cause notice was issued casually because it is now a settled law that show cause notice need not be issued for interest and penalty when duty has already been paid much prior to issue of show cause notice. In view of this finding, I find that the impugned order is correct and legal. It has to be observed that the Commissioner (Appeals) has set aside the show cause notice itself as incorrect and not sustainable. Furthermore the reliance on the cited judgment is also correct as the same is applicable to the facts of the case. Therefore there is no question of partly upholding the Order-in-Original. There is no merit in the appeal and the same is rejected. (Pronounced and dictated in the open Court)
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2007 (4) TMI 528
Order - Appealable order ... ... ... ... ..... 6,241 31-3-2000 1,86,932 39,44,236 Total 42,35,699 1,73,06,768 Net Debit 1,73,06,768 - 42,35,699 1,30,71,069 On a close perusal of the RG 23A Part-II extracts produced by learned SDR, we find that the above statement of counsel tallies with the Cenvat account produced by SDR. The Joint Commissioner rsquo s report seems to have been thoughtlessly prepared and the same is rejected. The Deputy Commissioner has since settled the entire dispute and his order has attained finality and the same is binding on both sides. Both sides have accepted his decision and the respondents have been paying their EMIs to the satisfaction of the Revenue. 8. emsp In the result, neither the decision of the lower appellate authority nor the challenge raised against it by the Revenue is relevant today. Both are infructuous in the wake of the settlement under Section 88 of the Finance (No. 2) Act, 2004 as amended by the Finance Act, 2005. The appeal is dismissed. (Dictated and pronounced in open court)
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2007 (4) TMI 527
... ...
... ... ..... rmada charges are required to be added in the assessable value. This Two Member Bench did not look into the earlier Three Member Bench judgments holding that Dharmada charges are not includible. The Constitutional Bench of the Apex Court in the case of Pradip Chandra Parija v. Pramod Chandra Patnaik 2002 (144) E.L.T. 7 (S.C.) have laid down that the Two Member Bench should follow the decision of a Bench of three learned Judges. In view of this judgment, the effect is that the judgment of CCE v. Panchamukhi Engineering Works will not be applicable as there are Three Member Bench judgments of Apex Court holding that dharmada charges are not to be added in the assessable value. 2. emsp On a careful consideration, we apply Three Member Bench judgments of the Apex Court cited supra and hold that dharmada charges are not required to be added in the assessable value. The appeal is allowed. (Operative portion of the order already pronounced in open Court on conclusion of the hearing)
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2007 (4) TMI 526
Classification of goods ... ... ... ... ..... he classification under the claimed heading nor any reasons have been given for allowing the exemption. The respondents plead that they have the documents which they have received from the supplier to show that the imported consignment was that of granules only. 6. emsp We have considered the submission. We see merit in Revenue rsquo s contention that for re-classifying the goods Commissioner (Appeals) should have examined the goods or at least look into the document to satisfy himself that the goods actually imported meet the requirements of note 1(h) of Chapter 72 and that the conditions of exemption notification are satisfied. We, therefore, remand the matter back to the original authority to determine the classification of the goods after affording a reasonable opportunity of hearing to the respondents and looking into the documents, which the appellant may like to furnish in their support and thereafter to pass a fresh order as per law. (Dictated and pronounced in Court)
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2007 (4) TMI 523
Interest on refund - Demand - Remand ... ... ... ... ..... the refund claim, but, rejected the interest part on the ground that the issue has not attained finality. It is to be seen that when the matter is remanded by Tribunal, impugned order confirming demand of duty gets set aside and the effect as if no order confirming demand of duty exists. As such, any deposits made by appellant in terms of such impugned order become refundable to the appellant. Surprisingly, Commissioner (Appeals) has held that the appellant is entitled for refund of pre-deposit but without interest. The same logic which applies for refund of pre-deposit amount would apply to interest also. When the appeal is allowed by way of remand, assessee would be entitled to interest on the refund of pre-deposit. There is no justification for holding otherwise. 3. emsp Accordingly, I allow appellant rsquo s claim of interest and direct authorities below to calculate the same in accordance with the law. 4. emsp Appeal is disposed off in above terms. (Pronounced in Court)
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2007 (4) TMI 521
Cenvat/Modvat - Capital goods ... ... ... ... ..... aring for the Revenue (sic) (Respondent) submits that the first Appellate Authority rsquo s Order dated 30-5-2007 was a reasoned and speaking order which has been passed basing on a clarificatory Circular issued by C.B.E.C. bearing Number 276/110/96-TRU, dated 2-12-1996. He drew attention to para 4 of the said Circular and submitted that there was no difference brought out by Board for use of all parts, components and accessories with capital goods and Modvat credit was rightly allowed by the earlier Order. 4. emsp Heard both sides and perused the record. The Circular which was relied upon by the learned Commissioner (Appeals) having clarified the matter thoroughly, there is no necessity to perpetuate the litigation. The Appellate Order passed relying on the said Circular is also self-speaking to entitle the assessee/respondent to the Modvat credit claimed, which is undeniable. 5. emsp Revenue rsquo s appeal is, therefore, dismissed. Dictated and pronounced in the open court.
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2007 (4) TMI 519
Stay/Dispensation of pre-deposit - SSI Exemption - Show cause notice - Issuance of ... ... ... ... ..... at SSI benefit is being denied on the ground that other units were using brand name of M/s. Sri Chakra Cements Ltd. Prima facie, the appellants have a strong case. Therefore interim stay is granted. In the meanwhile, the Commissioner shall file his comments/replies to the lsquo Grounds of Appeal rsquo and points noted in the stay applications before the next date of hearing. The Revenue should not proceed to recover the amounts till the disposal of the appeals. The matter to come up for consideration on 28th May 2007. 6. emsp In a similar matter, the Commissioner was asked to explain as to why cost should not be imposed on the Commissioner for having committed a serious mistake in not proper issue of show cause notice leading to huge revenue loss. In the present case, the Commissioner, Shri M. C. R. Shastri, I.R.S., should also file his reply as to why cost should not be imposed on him for this lapse before the next date of hearing. (Pronounced and dictated in the open Court)
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2007 (4) TMI 518
Order/Judgment - Delay in passing ... ... ... ... ..... who heard the matter on 11-8-1994 was transferred and the Respondents were unable to trace the documents. The authority who was successor heard the matter. Such act of delayed adjudication is contrary to the law laid down by the Hon rsquo ble Supreme Court in the Anil Rai v. State of Bihar - (2001) 7 SCC 318. 5. emsp Very recently, the Hon rsquo ble High Court of Bombay relying on the decision of the Hon rsquo ble Supreme Court in the case of Shri R.C. Sharma v. Union of India, (1976) 3 SCC 474 held in the case of Devang Rasiklal Vora v. Union of India reported in 2003 (158) E.L.T. 30 (Bom.) held that judgment passed after two years of closing of hearing was liable to be set side. It is needless to say that justice delayed is justice denied and not only justice is to be done but must manifestly apparent to be done. Therefore, empty formality followed to deny justice to the Respondent does not entitle the Revenue to succeed in its appeal. (Dictated and pronounced in the Court)
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2007 (4) TMI 517
Stay/Dispensation of pre-deposit ... ... ... ... ..... at there was no question of remission. As per the Board rsquo s circular, any shortage up to 2 in the molasses, which are stored was not required to be accounted for and was to be condoned. Since it was not to be treated as a shortage for which remission was required to be done, the order dropping the proceedings requiring reversal of Rs. 3,00,727/- was justified. On the facts of the case, a debatable issue arises requiring the Tribunal to decide whether such a distinction exists between permissible loss, which need not be treated as a shortage and a case of shortage where remission is required. The appellant has made out a prima facie case for considering whether a remand order was justified in the facts and circumstances of this case. There will, therefore, be interim stay of the impugned order during the pendency of the appeal. This application is, accordingly, allowed. The appeal will come up for final hearing in its due course. (Dictated and pronounced in the open Court)
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