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Central Excise - Case Laws
Showing 81 to 100 of 246 Records
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2007 (4) TMI 516
Demand - Manufacturing activity, proof ... ... ... ... ..... ating merits of Respondent. In support of his arguments the learned Counsel cited following decisions - (i) Alwyn Industrial Corporation v. CCE, New Delhi 1988 (33) E.L.T. 376 (T). (ii) Punjab Oil and Silicate Mills v. CCE 1993 (65) E.L.T. 268 (T) . (iii) CCE, Daman Valsad v. Kayem Synthetics Pvt. Ltd. 2003 (158) E.L.T. 180 (T-Del.) (iv) Rishab Refractories Pvt. Ltd. v. CCE, Chandigarh 1996 (87) E.L.T. 93 (T). 4. emsp Heard both sides and perused the record. It appears that the only basis of adjudication was the projected figures submitted by the Respondent to the Rajasthan Electricity Board. There was neither cogent nor credible evidence on record to prove any clandestine manufacture or removal. Suspicion, however, grave may be, not being substitute of proof, the adjudication order has no leg to stand. The decision cited by the ld. Counsel comes to his rescue. In the result, Revenue rsquo s appeal being devoid of merit is dismissed. Dictated and Pronounced in the open Court.
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2007 (4) TMI 512
Redemption fine and penalty ... ... ... ... ..... ed the record. 4. emsp After hearing both sides and on perusal of the record, it is revealed from the impugned order that during the material period, the appellant rsquo s clearance values were within the exemption limit. As such, no duty can be demanded in respect of the seized goods valued Rs. 50,860/- and only this value has to be added in the total value of the excisable goods removed during the financial year. Thus, there is no dispute that no duty is demandable on the seized goods, and, therefore, I do not find any justification in confiscation and imposition of redemption fine and, accordingly, the same are set aside. However, it is seen from the impugned order that the appellants cleared the goods without cover of bill/invoice in violation of Central Excise Rules and, therefore, the imposition of penalty is justified. Accordingly, the redemption fine is set aside and penalty is upheld. The appeal stands disposed of accordingly. (Dictated and pronounced in open court).
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2007 (4) TMI 509
Demand - Valuation - Penalty and interest - Imposition of - Admissibility of Refund - Held that: - no relief can be given with regard to the claim for refund. Even according to the appellants, the excess amount paid by them during the course of investigations was not an amount of duty. If that be so, nothing contained in Section 11B of the Act can be invoked by the assessee to claim refund of the said amount - demand set aside - appeal allowed - decided in favor of appellant.
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2007 (4) TMI 507
Payment of duty - Refund - Claim by purchaser ... ... ... ... ..... of the above decision, the seller of the goods cannot claim refund of excess duty paid, as he has already raised the invoices against the purchase, as regards the duty element. As such, by applying the ratio of the above decision, it has to be held that as the duty burden is passed on to the customer, he becomes entitled to refund irrespective of the fact of actual payment, which has been held to be irrelevant in the Larger Bench judgment referred supra. The logical follow up is that the buyer has borne the burden and has became eligible for claiming the refund. 6.3 emsp At any rate, as of now, the appellant had fully paid the duty amount to M/s. HPCL though not before they preferred the claim for the refund. 7. emsp We hold that appellant being the buyer, has borne the incidence of duty burden and therefore the orders of Commissioner Appeals upholding/ordering refunds legally sustainable. 8. emsp The appeals by the department are rejected. (Pronounced in Court on 30-4-2007)
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2007 (4) TMI 506
Stay of order - Cenvat/Modvat ... ... ... ... ..... is observation is in the context of presumption that appellants have availed irregular credit. The appellants apprehend that the revenue may press upon the appellant to reverse the credit which they are not required to do. The irregularity in the order is brought to our notice and they pray for grant of stay of the operation of two orders. It is submitted that they are seeking only partial stay of the impugned order against the observation noted supra. The counsel submits that once the OIO is set aside, there cannot be a direction to reverse the credit and that is also not the subject matter of show cause notice. Heard learned DR. 2. emsp We are satisfied that the portion of the Order against the assessee should be stayed and we direct the department not to press the appellants to reverse the credit in so far as this case is concerned, stay application allowed. Appeal to come up for hearing in it rsquo s turn before Single Member Bench. (Pronounced and dictated in open court)
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2007 (4) TMI 505
Cement - Earthquake relief work - Exemption under Notification No. 16/2001-C.E. ... ... ... ... ..... s appearing in the first line of the said condition, within which the certificates are required to be produced. This is clear from the language used in the condition, which is to the effect that - he may extend the said period of three months. As such, it cannot be interpreted, that Assistant Commissioner has powers only to extend the period by another three months. The powers vested in the Assistant Commissioner for extension of the period are unlimited. 3. emsp Inasmuch as the Notification is for exemption in respect of lsquo earthquake hit areas rsquo and for providing relief to them, the certificate procured by the appellant, though after the prescribed period, should not have been ignored by the authorities below. As such, I set aside the impugned order and remand the order to the original adjudicating authority for examining the said certificate and to grant the refund accordingly. 4. emsp Both the appeals are allowed by way of remand. (Dictated and pronounced in Court)
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2007 (4) TMI 503
Appeal by Department - Review of order ... ... ... ... ..... proper, nor any reasons for coming to such an opinion has been recorded in the authorisation. As such, such an authorisation cannot be taken as a valid authorisation in the eyes of law. Consequently, the appeal filed pursuant to the invalid authorisation is not maintainable and the same is dismissed. Dictated and Pronounced in the open Court.
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2007 (4) TMI 502
Exemption - Captive consumption - N/N. 67/95, dated 16-3-95 - Interpretation of statutes - Imposition of Penalty - Held that: - Admittedly, the scope of exclusion having been extended w.e.f. 1-6-01, it cannot be said that the said exclusion was in the notification even prior to the date of its issuance - It is well settled that a notification granting relief has to be held effective from the date of the issuance of the same and such relief provided by notification cannot be made applicable for the period prior to the issuance of the same.
The benefit of amendment to N/N. 67/95 was not available to the appellant in the month of May ’01 and duty of ₹ 17,97,495 has been rightly confirmed against them - penalty set aside.
Appeal allowed in part.
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2007 (4) TMI 501
Penalty - Imposition of - Delayed payment of duty - Suppression of facts ... ... ... ... ..... earliest stage for defence. Further, to levy penalty, even there is provision of law in the statute of book that does not ipso facto empower the authorities to impose without judging totality of the facts and circumstances of the case. Such a proposition also finds support from the Hon rsquo ble Supreme Court rsquo s decision in Hindusthan Steel Ltd. v. State of Orissa reported in 1978 (2) E.L.T. (J159) 25 STC 211, AIR 1970 SC 253, (1969) 2 SCC 627. Therefore, even though penalty is prescribed by law, following the judgment of the Apex Court in the case of State of Madhya Pradesh v. BHEL reported in 1998 (99) E.L.T. 33 (S.C.), there shall not be imposition on the appellant for the reasons aforesaid. 4. emsp In the result , the appeal is allowed partly only waiving the penalty but upholding the duty demand. 5. emsp C.O. of Revenue without raising any point of dispute but merely supporting the order of the Appellate Authority is dismissed. (Dictated and pronounced in the Court)
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2007 (4) TMI 499
Pipes - Exemption ... ... ... ... ..... goods were made into pipe fittings and the rest became waste and scrap. The waste and scrap were also recycled in the manufacture of finished pipes and the same were cleared on payment of duty. 3. emsp In view of the factual position that the impugned defective goods had been reused within the factory premises of the appellants for production of finished pipes and pipe fittings ultimately, the appellants were clearly eligible from duty-exemption under Notification No. 67/95-C.E., dated 16-3-1995. Accordingly, the impugned Order is set aside and the appeal is allowed with consequential relief to the appellants. (Dictated and pronounced in the open Court).
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2007 (4) TMI 497
Kar Vivad Samadhan Scheme - Appeal by Department ... ... ... ... ..... ide any issue relating to the disputed chargeable expenditure, disputed chargeable interest, disputed income, disputed wealth, disputed value of gift or tax arrear specified in the declaration and in respect of which an order had been made under Section 90 by the designated authority or the payment of the sum determined under that Section Provided that in case an appeal is filed by a Department of the Central Government in respect of such issue relating to the disputed chargeable expenditure, disputed chargeable interest, disputed income, disputed wealth, disputed value of gift or tax arrear except where the tax arrear comprises only penalty, fine or interest , the appellate authority shall decide the appeal irrespective of such declaration. rdquo It was the above proviso which was struck down as ultra vires Article 14 of the Constitution of India. Consequently, the present appeal of the Revenue cannot continue. The appeal is dismissed. (Dictated and pronounced in open Court)
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2007 (4) TMI 496
Refund - Limitation - Vehicle registered subsequently as taxi ... ... ... ... ..... by taking recourse to Section 11B set aside the original orders and allowed the refunds. The Commissioner (Appeals) has come to the findings that the time limit for claiming the refund claim could be extended under Section 11B with effect from 12-5-2000 and the subject vehicles were cleared on 5-10-2000 and 16-2-2001 respectively and as such refund was upheld. The Notification no doubt contemplates that the refund should be filed within 6 months. However, no duty can be collected more than the effective rate i.e. duty that is exempted when vehicles are registered as taxis cannot be retained and have to be refunded and the time limit of Section 11B refund would be applicable de hors the stipulation of the notification. On examining the circumstances of the case facts, I find no error in the order passed by the Commissioner (Appeals) in sanctioning the refund as per Section 11B. Therefore, the Revenue appeals are dismissed for want of merits. (Pronounced in Court on 20-4-2007)
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2007 (4) TMI 494
Stay/Dispensation of pre-deposit - SSI Exemption - Brand name ... ... ... ... ..... however, during the course of hearing stated that the duty on the components carrying brand name i.e. Fermator brand Module and GMV valve is Rs. 20 lakhs only which at best can be considered as liable to duty though they did not admit of the same. We further note that upto 2003 appellants were themselves manufacturing piston assembly and power unit assembly carrying brand name. We therefore find the applicants have not been able to make out a prima facie case for complete waiver of duty in their favour and looking to the totality of the case, we direct a pre-deposit of duty of Rs. 20 lakhs within 8 weeks from today and such deposit there shall be waiver from pre-deposit of the balance amount of duty and penalty imposed on various applicants and recovery thereof stayed till disposal of the appeals. Failure to comply with this direction shall lead vacation of stay and dismissal of appeals without any further notice. Compliance to be reported on 25-6-2007. (Pronounced in Court.)
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2007 (4) TMI 491
Demand - Quantification of - Confiscation and penalty ... ... ... ... ..... therefore been rightly invoked. We therefore uphold the demand of duty along with interest. 6. emsp As regards penalty looking to the totality of the facts and circumstances of the case, we find that penalty of equivalent amount is rather harsh and the same is reduced to Rs. 25,000/- (twenty-five thousand) on M/s. Royal Profile. As regards penalty on Shri Ismail Shaiwala, we find that Shri Ismail Shaiwala has admitted that the profiles were cleared in the garb of M.S. Plate (Rectangular) and lie was therefore involved in its clandestine clearance. He is therefore liable to penalty. However, we reduce the penalty from Rs. 25,000/- (twenty-five thousand) to Rs. 10,000/- (ten thousand only). As regards confiscation of land, building, machinery, etc. as the duty involved is less than Rs. 1 lakh running for over 5 years and there is no evidence to show that the offence is repeated in nature, the same is set aside. The appeals are allowed in the above terms. (Pronounced in Court.)
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2007 (4) TMI 487
Exemption - Cenvat/Modvat, condition of non-availability ... ... ... ... ..... ed prior to 1-3-03 were utilized and finished products were cleared before 1-3-03, the entire clearances should have been made in pursuance to notification No. 10/2002-CE, and the condition of non-availment of Cenvat credit stands fully imposed. If the appellant received raw material from 1-3-03 and start manufacturing, they are eligible to avail concessional rate and simultaneously enjoy the benefit of Cenvat credit. It is to be noted that if the rate of duty had gone up from 1-3-03, the appellant would be required to pay even in respect of goods manufactured before 1-3-03 at higher rate. Since the condition for availing the benefit has been removed w.e.f. 1-3-2003, the benefits should also be given in respect of all clearances w.e.f. 1-3-03, and therefore the credit taken on the stock of raw materials in various stages as above is in order. 7. emsp Therefore, the order of Commissioner (Appeals) is set aside and appeal allowed with consequential relief. (Pronounced in Court)
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2007 (4) TMI 486
Exports - refund claim for Merchant overtime charges - HELD THAT:- It is seen that the office of the jurisdictional Superintendent of Central Excise Range is situated at Kota. The appellant factory is coming within the jurisdiction of the central excise Range Superintendent who supervises the work. The Tribunal in the case of Sigma Corporation (I) Ltd.[2004 (1) TMI 112 - CESTAT, NEW DELHI] held that if the services of stuffing of goods in the container was rendered by the officers within his Range only i.e. within his normal place of work, no MOT charges is payable for stuffing of goods carried out during the working days only.
Regarding contention of the learned D.R. that refund claim is not maintainable under Central Excise Act, I find that the Tribunal in the case of CCE, Jaipur-I v. M/s. Flair Filtration (P) Ltd.[2006 (11) TMI 393 - CESTAT, NEW DELHI] held that any appeal or any dispute arising would be definitely covered under the provisions of the Customs Act, 1962.
Thus, I set aside the impugned order and the appeal is allowed with consequential relief.
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2007 (4) TMI 484
Storage tanks - Excisability - Immovable property ... ... ... ... ..... shall not be goods liable to duty. Therefore, shall not be taxable. Applying the test aforesaid, the tank satisfying the test should be excluded from computation and small size tanks which are found to be marketable goods applying the twin test as stated above, shall only be dutiable. While levying duty, the Appellant being an SSI cannot be denied of SSI exemption and the activity being carried out on job work basis, valuation of job work shall only be made following ratio laid down in Ujagar Prints as claimed by the Appellant. 5. emsp In the result, the appeal is allowed in the manner indicated above remanding the matter to the ld. Adjudicating Authority, setting aside the impugned order. While redoing the assessment, the ld. Adjudicating Authority shall of course give reasonable opportunity of hearing to the Appellant to adduce all evidence in support of its claim for grouping in the aforesaid manner for dutiability and duty free. (Dictated and pronounced in the open Court)
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2007 (4) TMI 483
Special Economic Zone (SEZ) - DTA clearance ... ... ... ... ..... d 6-5-1997, a liberal interpretation of the word, lsquo manufacture rsquo was allowed and applying the said Circular in the following cases, the Tribunal has also allowed duty-concession under the same Notification No. 2/95-C.E. - (i) Super Cassettes Industries Ltd. v. C.C., New Delhi - 1998 (104) E.L.T. 115 (Tribunal) (ii) Oracle Infotech (P) Ltd. v. C.C.E., New Delhi - 2003 (151) E.L.T. 656 (Tri.-Del.). 5. emsp We find merit in the submissions made on behalf of the appellants. In view of the cited Board rsquo s Circular which has also been taken note of in the aforecited decisions of the Tribunal, adopting a liberal interpretation of the word, lsquo manufacture rsquo in respect of the appellant rsquo s Unit located in the S.E.Z., we set aside the impugned Order and allow the appeals holding that the concession under Notification No. 2/95-C.E. cannot be denied in respect of the impugned goods. 6. emsp Both the appeals are allowed. (Dictated and pronounced in the open Court.)
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2007 (4) TMI 482
Refund - Unjust enrichment ... ... ... ... ..... ppellants claiming rebate of duty on the goods cleared by them. In terms of Section 11B, refund of duty can be claimed by a person, other than a manufacturer, if it is shown that the burden of the duty, of which refund has been claimed, has not been passed on to any other person. This condition is found fully satisfied in the present case. rdquo It can be seen from the above reproduced portion that the respondents had produced documents evidencing that they had not passed on the burden of the excise duty to their customer but borne by them. As against these findings, the Revenue has not produced any evidence to show that the burden of excise duty has been passed on to the customer of the respondents. In the absence of any evidence to the findings of facts as given by the Commissioner (Appeals), the appeal of the Revenue fails. 6. emsp Accordingly, the appeal filed by the Revenue is dismissed and Cross-Objection filed by the Respondent is also disposed off. (Dictated in court)
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2007 (4) TMI 479
Coke - Cess, liability ... ... ... ... ..... y. They have held that coal and final product of coke plant is one and the same. It is not correct. It is his submission that cess is leviable only on the coal and not on the final product produced by the coke plant. 2. emsp Learned DR reiterated the Departmental view and submitted that the clarification of the Coal Ministry has not been examined by the authorities. He leaves the matter to the discretion of the Bench. 3. emsp On a careful consideration, we notice that the cess under Coal Mines/Services and Development Act, 1974 has been collected on the imported coke. The clarification of Ministry of Coal has not been examined. In terms of the clarification given, the item namely imported coke is a final product of the coke plant and it is not coal and hence cess levied on the coke is not justified. Hence, confirmation of cess on coke is set aside by allowing the appeal in the light of the Ministry rsquo s clarification cited before us. (Pronounced and dictated in open Court)
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