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Central Excise - Case Laws
Showing 41 to 60 of 222 Records
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2007 (7) TMI 533 - CESTAT, NEW DELHI
Stay order - Remand order of Commissioner (Appeals) - Power to remand ... ... ... ... ..... Medico Labs and Anr. reported in 2004 (173) E.L.T. 117 (Guj.) 2004 (64) RLT 641 (Gujarat) and submits that the Division Bench of High Court took a view that the Commissioner (Appeals) was vested with the power to remand the matter to the adjudicating authority for his fresh consideration. The learned authorized representative for the Department contended that since the Commissioner (Appeals), Jalandhar (headquarters at Chandigarh) was within the jurisdiction of High Court of Punjab and Haryana, this Tribunal should follow the decision of Punjab and Haryana High Court that the Commissioner (Appeals) has no power to make the order of remand. Even if there is conflict of decisions between of the two High Courts on the question whether the remand can be made, this is not a fit case for granting stay, at this stage. The stay application is, therefore, rejected. The appeal will be posted for final hearing in its due course. (Order dictated and pronounced in open Court on 30-7-2007)
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2007 (7) TMI 532 - CESTAT, AHMEDABAD
Refund - Production capacity based duty - Annual Capacity of Production ... ... ... ... ..... of refund of Rs. 51,382/- and the Department is in appeal against this issue. 4.1 emsp I have carefully considered the submissions from both sides. It is not disputed that the duty payable under the compounded levy scheme is not linked to the actual production and clearances. Since, in such cases, the export incentives cannot be linked to actual duty paid the Department has chosen to fix a formula and accordingly export incentives are being paid, as prescribed. It has not been shown how the change on the duty paid under the compounded levy scheme affects the rate fixed for export incentives. 4.2 emsp Therefore, the Commissioner (Appeals) rsquo s decision in holding that these two are different aspects and the rebate taken by them does not affect the duty payable under the compounded levy scheme is legally correct and no valid reasons have been adduced to interfere with it. 5. emsp In view of the above, appeal by the Department is dismissed. (Dictated and Pronounced in Court)
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2007 (7) TMI 531 - CESTAT, MUMBAI
Reference to Larger Bench - Judicial discipline - Appeal by Department ... ... ... ... ..... al Tubes (I) Ltd. (Supra) to my mind, with utmost respect, has not considered the sub-section in its entirety. I am unable to persuade my mind to follow the same. The Constitution Bench of the Hon rsquo ble Supreme Court of India in the case of Pradip Chandra Parija v. Pramod Chandra Patnaik 2002 (144) E.L.T. 7 (S.C.) has settled the law, in as much, that, if two judges Bench differ from the decision of three judges Bench, they should refer the same to same to a Bench consisting there judges, to consider whether the matter requires to be put up to a Larger Bench. 4. emsp Respectfully following the judgment of the Constitution Bench of Hon rsquo ble Supreme Court, Registry is directed to place this file before the Hon rsquo ble President for constitution of a Division Bench, for consideration, whether the law as settled by the Division Bench in the case of C.C.E, Meerut-II v. Steel and Metal Tubes (I) Ltd. (Supra) requires reconsideration by a Larger Bench. (Dictated in court)
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2007 (7) TMI 530 - CESTAT, AHMEDABAD
Cenvat/Modvat - Deemed credit ... ... ... ... ..... text, he relies on the Board rsquo s Circular No. 243/77/96-CX dated 3-9-96 in the context of Notification No. 29/96-C.E.(N.T.) dated 3-9-96, wherein it has been clearly mentioned that deemed credit allowed is in lieu of duty paid on fabrics, yarns, dyes, chemicals and packing materials. He also relied on the CBEC rsquo s Circular No. 702/18/2003-CX dated 13-3-2003 issued wherein it has been reiterated that even when grey fabrics did not pay duty, the deemed credit would be available in the light of the fact that duty paid inputs are contained in the grey fabrics. 5. emsp In the light of the above clarifications of the Board, I hold that the deemed credit provided under Notification No. 6/2002 has taken into account duty incidence on a wide range of inputs used in the grey fabrics even when the grey fabrics are not dutiable as such. Therefore, the appeal deserves to be allowed. 6. emsp Accordingly appeal is allowed with consequential relief. (Dictated and pronounced in Court)
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2007 (7) TMI 529 - CESTAT, NEW DELHI
Rectification of mistake - Penalty - Quantum of ... ... ... ... ..... e the Hon rsquo ble Delhi High Court in the case of Malbro Appliances (supra). Further, I find that the Larger Bench of the Tribunal in the case of CCE, Delhi v. ILPEA Paramount Pvt. Ltd., reported in 2007 (213) E.L.T. 500 after taking into consideration the decision of Hon rsquo ble Supreme Court in the case of Sony India Ltd. and other - 2004 (167) E.L.T. 385 (S.C.) decisions held that if the assessee is liable for penalty under Section 11AC than the Tribunal has no power to reduce the penalty. The proviso to Section 11AC is applicable when the duty is paid along with interest and penalty as determined within 30 days. In such case, the manufacturer will be entitled benefit to pay penalty on the 25 of the duty-determined. In the present case, the penalty has not paid under the proviso to Section 11AC. In these circumstances, I find no mistake in the Final Order which requires rectification or modification. The application is dismissed. (Dictated and pronounced in open Court)
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2007 (7) TMI 526 - CESTAT, NEW DELHI
Appeal to Appellate Tribunal - Authorized representative ... ... ... ... ..... ribunal anywhere in India where the Benches of the Appellate Tribunal function, since the provisions do not distinguish between those who have ceased to hold office and those who will cease to hold office after it is enacted. rdquo 4. emsp We find that sub-section (6) of Section 129 of Customs Act, 1962 as inserted by Section 110 of the Finance Act, 2007, effective from 11-5-2007 imposed a restriction on Members of Appellate Tribunal not to appear before the Tribunal ldquo on ceasing to hold office rdquo . In view of the decision the Tribunal in the case of Madhya Pradesh Consultancy Organisation Ltd. (Supra), we find the preliminary objection of the learned SDR is sustainable. Accordingly, the appellant is directed to engage Authorised person as provided under Section 146A of Customs Act, 1962, other than the retired Members of the Appellate Tribunal under Section 129(6) of the Act. Registry is directed to fix the date after one month. (Dictated and pronounced in open Court)
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2007 (7) TMI 523 - CESTAT, AHMEDABAD
Cenvat/Modvat - Capital goods - Transfer of ownership - Held that: - there was deemed removal from the premises of the appellant consequent to issue of commercial invoice, and it was proper to deem that the moulds have been received back in the appellant’s factory for the intended purpose. It is to be noted that if the moulds were received by the buyers and physically retuned to the appellant, the credit was available - appeal allowed.
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2007 (7) TMI 522 - CESTAT, NEW DELHI
Cenvat/Modvat - Inputs - Duty paying documents ... ... ... ... ..... rer and assessee would necessarily be a lsquo person rsquo and not a mere unit. Therefore, the requirement of claiming modvat credit under the document falling in the category lsquo c rsquo of sub-rule (3) of Rule 57G was duly satisfied in the present case and modvat credit could not have been denied to the appellant due to non-mention of the assessee rsquo s unit in the bills of entry, the genuineness of the triplicate copies of which had never been disputed, nor has the fact about the goods having been received under the cover of these documents ever been disputed rdquo . 6. emsp For the foregoing reasons, the modvat credit in respect of the said bill of entry could not have been denied to the appellant. The impugned order is, therefore, set aside and the modvat credit amounting to Rs. 1,28,806/- covered under the aforesaid bill of entry dated 22-8-1998 is held to be admissible to the appellant. The appeal is, accordingly, allowed. Dictated and pronounced in the open Court
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2007 (7) TMI 520 - CESTAT, MUMBAI
Cenvat/Modvat - Input ... ... ... ... ..... r used in the factory of the manufacturer. Reportedly the goods in question were primarily used in the manufacture of the structure for movement of the EOT cranes the shade put above it was minor and incidental. Para 6(2) above refers. Thus the appellant is entitled to credit on the impugned goods as ldquo input rdquo , though not as ldquo capital goods ldquo . 8. emsp It can be noticed from the above reproduced portion of the order of the Commissioner (Appeals), that he has come to the conclusion that the beams, angles, channels, plates rsquo etc. which were procured by the respondent was primarily used in the manufacture of the structure for movement of the EOT cranes and used by the respondent in their factory premises for transporting of inputs and finished goods, which are heavy in nature. In the absence of any contrary evidence, the impugned order is correct and legal and does not require any interference. The appeal filed by the revenue is rejected. (Dictated in Court)
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2007 (7) TMI 519 - CESTAT, MUMBAI
Confiscation and penalty - Redemption fine and penalty - Quantum of ... ... ... ... ..... the Additional Duties of Excise (Goods of Special Importance) Act, 1957 and noting that it has been held by the Hon rsquo ble Delhi High Court in the case of Pioneer Silk Mills Pvt. Ltd. v. Union of India, 1995 (80) E.L.T. 507 (Del.) that goods liable to additional duty under the above mentioned statute cannot be liable to confiscation and no penalty can be imposed for non-payment of additional duties under this Act. This decision of the Delhi High Court has been upheld by the Hon rsquo ble Supreme Court in the case of Orient Fabrics Pvt. Ltd., 2003 (158) E.L.T. 545 (S.C.) . By applying the ratio of the Apex Court decision, we hold that the confiscation of canvas cloth and tarpaulin cloth cannot be sustained and accordingly set aside the same. 3. emsp As regards penalty, in view of the fact that the confiscation of tarpaulin alone is being upheld by us, we reduce the penalty to Rs. 50,000/-. 4. emsp Appeals are thus partly allowed as above. (Pronounced and dictated in Court)
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2007 (7) TMI 518 - CESTAT, NEW DELHI
Refund - Unjust enrichment ... ... ... ... ..... d that it is a case of re-credit of duty debited during proceeding. The Tribunal by its order dt. 5-2-99 decided the issue on merits. There is no dispute that they are entitled to credit the said amount in PLA after final order of this Tribunal. Therefore, ld. DR relied upon the decision of the J.K. Synthetics Ltd. wherein Modvat credit originally taken subsequently recovered by the appellant and therefore, the Tribunal held that refund is more appropriate than taking credit originally taken. In the present case, there is no allegation that the appellant recovered the same amount from any person. So, the contention of the ld. DR that principle of unjust enrichment is applicable unsustainable. At any event the appellant is entitled to credit this account in their account and therefore, filing of the refund claim at this stage is wholly unnecessary. Accordingly, the impugned order is set aside. The appeal is allowed with consequential relief. (Order dictated in the open Court.)
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2007 (7) TMI 517 - CESTAT, AHMEDABAD
Adjudication - Remand - Common appeal ... ... ... ... ..... mentioned as co-noticees right from the issue of show cause notice and a common appeal was filed by the partner and the firm before the Commissioner (Appeals). They should be treated as separate appeals of both of them. Now it is not within the purview of the Commissioner to pass remarks that earlier this appellant has not filed separate appeal. When this Tribunal remanded both the appeals No. E/444 and 445/02 it goes to show that two separate appeals are remanded for fresh adjudication. Based on this he ought to have decided the appeal of the appellant. The Commissioner has erred in holding that only one appeal was before him in the past, though common appeal was filed, the same has not been taken cognizance. Therefore, the learned Commissioner is hereby directed to dispose of this appeal, vide E/444/02 which pertains to this appellant in respect of penalty amount and give a fresh decision in accordance with law. Appeal is allowed. (Dictated and pronounced in the open Court)
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2007 (7) TMI 516 - CESTAT, AHMEDABAD
Confiscation and penalty ... ... ... ... ..... bove referred decisions were rendered by Single Member. The principles laid down in the aforesaid decisions cannot outweigh the decision of the Division Bench which are based on the principles laid down by the Hon rsquo ble Supreme Court in the case of Gujarat Travancore Agency v. Commissioner of Income-tax - 1989 (42) E.L.T. 350 (S.C.). Therefore, in the light of the facts and. circumstances of the case and the principles laid down by the Division Bench and the citations relied upon by the appellant in respect of Rule 173Q, I am of the opinion that confiscation of the goods and the redemption fine and also imposition of penalty under Rule 173Q are not maintainable since mens rea is not established. Accordingly, I set aside the impugned order and allow the appeal with consequential relief. However, a penalty of Rs. 2,000/- under Rule 226 of the Central Excise Rules is hereby confirmed for non-entering the goods in the RG-1 register. (Dictated and pronounced in the open Court)
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2007 (7) TMI 515 - CESTAT, NEW DELHI
Cenvat/Modvat - Capital goods removed after use - Held that: - the goods sold were not sold as waste and scrap - sub-rule (5a) in Rule 3 will have no application
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2007 (7) TMI 513 - CESTAT, CHENNAI
Cenvat/Modvat - Common inputs used for both exempted and dutiable final products ... ... ... ... ..... the price of the exempted final products. This is as per Rule 6(3) of the Cenvat Credit Rules, 2002. A careful reading of Rule 6(3) shows that the manufacturer has the option not to maintain separate accounts. In other words, the manufacturer can choose not to maintain separate accounts and pay 8 of the price of exempted final products. When the manufacturer does that, he is perfectly complying with the Cenvat Credit Rules. In the present case, Revenue has seized certain private documents from the appellants and holds that they would be governed by Cenvat Credit Rules 6(2). In our view, this is not correct. When an option is given to the manufacturer, Revenue cannot force him to adopt a particular course. This will be against the Cenvat Credit Rules. Hence, we do not find much merit in the OIO. The same is set aside by allowing the appeal. rdquo 5. emsp Following the above decision, we set aside the impugned order and allow this appeal. (Dictated and pronounced in open Court)
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2007 (7) TMI 512 - CESTAT, KOLKATA
Cenvat/Modvat - Inputs - Demand - Manufacture - Held that: - the appellants have paid more duty than the credit they have taken, the impugned demand is not sustainable in respect of the credit taken - since Section 11D applies to a person who is liable to pay Excise duty, no demand can be raised under the same against the appellants when the process applied by them does not to manufacture and hence the appellants are not manufacturers and hence not in the category of a person who is required to pay excise duty - appeal allowed.
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2007 (7) TMI 511 - CESTAT, CHENNAI
Demand - Limitation ... ... ... ... ..... Narmada Chematur Pharmaceuticals (supra), a demand of duty was set aside by the apex court after noting that the amount of Modvat credit available to the assessee was exactly equal to the duty demanded by the departmental authorities by denying them exemption claimed under a Notification. In the present case, it is not in dispute that, during 2004-05 and afterwards, the appellants were entitled to avail CENVAT credit of CVD paid through DEPB on the imported raw material. Similar credit of duty of excise paid on indigenous raw material also was, of course, available to them. For the prior period, the demand is evidently hit by time-bar for the reasons stated by learned counsel. There can be no doubt that the total amount of admissible credit would exceed the amount of duty demanded by the Commissioner for 2004-05 and 05-06. In the result, the entire demand is liable to be set aside and the appeal to be allowed. It is ordered accordingly. (Dictated and pronounced in open court)
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2007 (7) TMI 510 - CESTAT, NEW DELHI
Natural justice - Violation of ... ... ... ... ..... ri.-Del.), decided in favour of the assessee. 4. emsp After hearing both sides and on perusal of the record, I find that the Commissioner rejected the application for common registration without giving any proper opportunity of hearing. It is settled that registration under Rule 174 of the erstwhile Central Excise Act, 1944 is a quasi-judicial power which cannot be decided without following the principle of natural justice. Hence, the impugned order is set aside and the case is remanded back to the adjudicating authority to decide it afresh after giving an opportunity of hearing and following the decision of the Tribunal as stated above. 5. emsp Thus, the appeal is allowed by way of remand. (Dictated and pronounced in open court).
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2007 (7) TMI 509 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... istration, interim relief can be given rdquo . 8. emsp It can be seen from the above reproduced portion of the order of the Hon rsquo ble Supreme Court has held that there can be no rule of universal application in such matters and order has to be passed keeping in mind factual scenario. In the current case, the Rule 3(1) grants the assessee to avail the credit of the duties mentioned under Rule 3(1). It seems that Rule 3(7)(a) is restricting the credit of the duty in respect of the BCD and CVD paid by a 100 EOU on the finished goods cleared by them. This restriction will not apply to the Education Cess, which is allowed to be taken as Cenvat credit by the appellants. 9. emsp In view of the foregoing reasons, I am of the view that the appellants have made out a prima facie case for waiver of amount of duty involved in this case. Application for waiver of pre-deposit of amounts involved is allowed and recovery thereof stayed till the disposal of the appeal. (Dictated in Court)
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2007 (7) TMI 508 - CESTAT, MUMBAI
Refund claim - Bar of Unjust enrichment - refund claim that arose consequent to the appeal filed by the respondent
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