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Central Excise - Case Laws
Showing 241 to 260 of 2676 Records
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2007 (11) TMI 366
Refund of amount deposited by the assessee during the course of investigations – Non challenge to appropriation order - Deputy Commissioner passed an order to appropriate the said amount alleging undervaluation of excisable goods sold through depots - This order was not questioned by the assessee. The assessee has also paid a sum of Rs. 1,000/- which was imposed as penalty. In other words, the order of Deputy Commissioner, Central Excise, Bellary, has become final and conclusive. – Refund application for said amount filed on ground of adjudication of duty payable - Even if we accept the contention raised by the learned Counsel for the assessee that there was no adjudication of the duty payable by the original authority, when the original authority has passed an order to appropriate the amount of Rs. 9,70,524/- and imposed a penalty of Rs. 1,000/-, it was for the assessee to challenge the order of appropriation. - Revenue is justified in contending that the refund claim of the assessee was not maintainable. Therefore, we are of the opinion that the Tribunal was not justified in allowing the appeal of the assessee in directing the Revenue to refund the amount which was already appropriated in the original proceedings.
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2007 (11) TMI 363
Whether the Appellate Tribunal and the Commissioner (Appeals) were justified in dismissing the Cross Objections filed by the assessee without considering the appeal filed by the Revenue before the Commissioner of Customs & Central Excise (Appeals) was under sub-section (4) of Section 35E of the Central Excise Act 1944? - It is also not in dispute that the assessee did not file any appeal as required under Section 35E of the Central Excise Act, 1944. However the Revenue filed an appeal before the Commissioner of Customs & Central Excise (Appeals) on the ground that classification of certain items by the Adjudicating Authority was erroneous under Section 35B(2) of the Central Excise Act, 1944. Pursuant to the appeal filed by the Revenue, the Commissioner of Customs, Central Excise (Appeals) by his notice dated 20-2-2001 called upon the assessee herein to file Cross-objections – Cross objections held as not maintainable by tribunal – Held that Section 35E(4) could not have been invoked by the assessee to file cross objections if suo motu power was exercised by the Commissioner of Appeals - When such cross objections were filed, it is most unfortunate that Commissioner of Appeals as well as the Tribunal without considering the fact that cross objections were filed pursuant to an appeal filed by the Revenue under Section 35E(2) of the Act have dismissed cross-objections erroneously. – we have to answer the question of law in favour of the assessee and the order of the Commissioner of Appeals as well as that of the Tribunal are required to be set aside and the matter is required to be remanded to the Commissioner of Appeals only to consider cross-objections filed by the assessee after hearing both the parties
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2007 (11) TMI 316
The High Court of Punjab & Haryana at Chandigarh dismissed an appeal under Section 35G of the Central Excise Act, 1944. The appeal challenged a tribunal's order regarding the movement of capital goods between two units of the assessee, finding no disposal of goods warranting denial of Modvat credit. The court held that no substantial question of law arose as the matter involved factual findings, and the appeal was dismissed. (Citation: 2007 (11) TMI 316)
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2007 (11) TMI 313
Issues:
Claim of Modvat credit disallowed due to delay in entry in RG 23A Part II.
Analysis:
The appellant, a company engaged in manufacturing tungsten wire, imported tungsten ore under two invoices and brought it into the factory premises on specific dates. Although the receipt entry was promptly made in RG.23A Part I, the entry in RG.23A Part II was delayed. The claim for Modvat credit concerning the ore imported on a particular date was disallowed due to the delay in entering the particulars in RG.23A Part II. The Adjudicating Authority's decision was upheld by the Commissioner of Appeals and the Tribunal.
The appellant argued that the delay in entering the particulars in RG.23A Part II was due to the unit being new and work commencing later. The appellant contended that the entry in RG.23A Part I should be considered substantial compliance, as held by the Tribunal in similar cases. The appellant requested the court to set aside the order and remand the matter to the Adjudicating Authority for a proper review based on the entry in RG.23A Part I.
After hearing both parties, the Court found that the authorities below did not adequately consider the facts presented by the appellant. The Court opined that if the appellant was entitled to the benefit based on the entry in RG.23A Part I, the matter should be reconsidered by the Adjudicating Officer by examining the records maintained by the assessee. Therefore, without addressing the question of law, the Court remanded the matter to the Adjudicating Authority for a fresh review in accordance with the law.
Consequently, the appeal was allowed, and the orders of the Tribunal and the Adjudicating Authority were set aside. The matter was remanded to the Adjudicating Authority for a fresh consideration in compliance with the law.
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2007 (11) TMI 312
Prosecution - complaint under Section 9 of the Central Excise Act, 1944 read with Sections 193, 192 and 120-B of the IPC - Held that:- After due consideration of the evidence produced by the department, the CEGAT has exonerated the accused company by returning a positive finding that the quantity of MS ingots alleged to be clandestinely manufactured and removed without payment of excise duty was in fact wastage occurring at the stage of production of forgings out of ingots. No fabrication or manipulation was found in the documents of the accused company. Since the Department has not challenged the order dated 19-9-95, the finding arrived at by CEGAT has attained finality. The order of the CEGAT exonerating the accused company is thus clearly on merits.
In view of the above discussion, the complaint under Section 9 of the Central Excise and Salt Act, 1944 read with Sections 193, 192 and 120-B of the IPC (Annexure G to the petition) and the proceedings emanating out of the said complaint are quashed for the reason the departmental proceedings has resulted in the petitioners being exonerated on merits and the criminal prosecution is based on same set of facts and evidence.
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2007 (11) TMI 306
Refund of rebate - revision application - Held that:- It cannot be construed that after return of the revision application, the very same paper book was to be presented along with a petition as per the provisions for condonation of delay. From the decision of this Court, it will be evident that the Revenue was allowed to take back the revision application for filing a proper revision application along with a petition for condonation of delay, and for the said reason the matter was remitted to the revisional authority for determination of the application.
In view of the factual position and in the writ petition the company having not satisfied the Court that the amount so claimed, for that the burden has not been passed on any other person, it was not open to learned Single Judge to interfere with the order passed by the revisional authority.
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2007 (11) TMI 297
Cenvat Credit - LDO used in Generator Set - Revenue contended that the Tribunal did not appreciate that LDO, which was supposed to be used only in respect of the generator belonging to the assessee, was not actually used by it. But the generator set was that of a different company. Therefore, there is a clear violation of the Cenvat credit and requests the Court to set aside the order - When two companies were amalgamated with the assessee company, all the assets and liabilities of the amalgamated company rests with the amalgamated company and the said generator was used by the assessee, no Court can hold that the assessee had availed credit of Cenvat wrongly - credit allowed.
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2007 (11) TMI 295
Credit - Items beams, angles, channel, plates flat plates etc. were used in the manufacture of Ground Hopper, coal and iron ore processing, screening sizing, finished goods bin with sizing, screening, conveyor galleries, trusses, working platform etc. - as per explanation to Rule 2 of Cenvat Credit Rules, 2002 held that credit on the inputs which are used in the manufacture of final product cannot be denied - held that welding electrodes cannot be considered as inputs or as a capital goods, so credit is disallowed - issue of availment of the credit on welding electrodes was highly contested one, so penalty not imposable
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2007 (11) TMI 293
Interest on delayed refund – held that interest has to be quantified from the date of receipt of refund application and not from the date of fresh application - As such findings of the appellate authorities that the interest is to be granted after three months from date of receipt of filing of refund application, is correct - Revenue’s contention that the period involved was prior to enactment of Section 11BB and as such no interest is payable, is rejected because said provisions are also applicable to the refund application pending on the date of enactment of said Section
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2007 (11) TMI 280
Price escalation – demand of interest from the date of original clearance of goods – it is clear that there is no time gap between issuance of supplementary invoice and price escalation - held that, since duty was paid immediately after escalation of price without any delay, demand of interest is not justified – revenue’s appeal rejected
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2007 (11) TMI 277
Clandestine removal – seizure - No evidence shown by petitioner to prove that goods were brought from sale depot – therefore, duty payable on the actual quantity already seized by the Dept. as well as the corresponding penalty are sustained - petition under Article 226 of the Constitution of India, is not acceptable - But in the absence of bifurcated figures, and in view of the fact as to whether the larger duty levied from the petitioners is sustainable in the eye of law, matter is remanded
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2007 (11) TMI 276
Whether Lean Gas produced by Gas Authority of India Ltd. (GAIL) is a manufactured marketable final product or by-product - alleged by the Department that assessee had cleared Lean Gas in bulk u/ch 2611.21 claiming nil rate of duty - no clearance has been given by Committee in favour of the Central Govt. which had preferred the present civil appeals - appeals filed by dept. are dismissed on the factual aspect, namely, that in the SCN, there is no allegation that Lean Gas is the final product.
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2007 (11) TMI 269
Out of refund claim of Rs. 20,59,373/- Original Authority sanctioned refund of only Rs. 16,41,737/- and refund of balance amount was rejected on the ground that the appellant was not able to produce the proof of payment - Since the fact of payment has been recorded by the department in the SCN and also in the OIO, the rejection of an amount of Rs. 4,17,636/- on the ground that the appellant did not produce proof of payment is not sustainable
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2007 (11) TMI 268
Inputs received from the supplier who manufactured goods (inputs) on job-work basis – Credit – documents issued - There is no dispute about the duty paid nature of the goods manufactured on job work basis and that the duty has been paid by supplier on such goods - Therefore, in the peculiar facts and circumstances of the case, credit taken cannot be held to be irregular. No case has been made out by revenue for interfering with the orders of the Commissioner (Appeals)
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2007 (11) TMI 267
Notification No. 8/03 as amended by Not. No. 30/03 - exemption granted by a notification to a particular class of small manufacturers, Subsequently the exemption was restricted to a still smaller section, and now it has been confined to industries of a smaller size - reduction has been challenged by the petitioners on the ground of arbitrariness - in matters of taxing statutes HC cannot ask why the State has chosen to impose tax on some and not on others – no arbitrariness – petition dismissed
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2007 (11) TMI 265
Insulating Liners and GFNIL are not same - Glass Filled Nylon Insulating Liners (GFNIL) are classifiable as ‘Other Articles of Plastics’ covered by Entry 39.26 as contended by the assessee – not classifiable u/h 85.46 as ‘Electrical Insulators of any Material’ as contended by the Department - it is quite possible that the liner in question is capable of falling simultaneously under both the Entries quoted above – hence in a classification dispute, the benefit should go to the assessee
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2007 (11) TMI 258
Notification 177/86 restrict credit to specified inputs – validity of this notification challenged by assessee on ground that Central Govt. is not empowered to restrict credit to specified inputs but can only specify the final products & duty u/r 57A – held that Rule 57A can’t be regarded as extraneous to the statutory provisions which empowers the govt. to exclude some inputs - held that the notification was not in any way repugnant to the rule making authority u/r 57A – appeal dismissed
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2007 (11) TMI 255
DR contended that the respondent cannot avail credit on defaced invoices and the adjudicating authority rightly held that the respondent would have availed credit only on a certificate issued u/r 57E - Rule 57E was applicable in cases where duty paid on any inputs was varied subsequently due to any reason resulting in payment of refund, or recovery of more duty from the manufacture or importer, which is not in the instant case - credit cannot be denied on mere procedural lapse
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2007 (11) TMI 252
Assessee procured duty paid inputs & availed credit on them & used for the manufacture of goods on job work basis - Revenue contended that such credit is inadmissible, as an item cleared under job work basis are without payment of duty - held that clearance under the job work basis cannot be equated to as clearance without payment of duty, as these job worked goods were further utilized in the manufacture of dutiable final product - appeal filed by the Revenue is rejected – credit allowed
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2007 (11) TMI 249
Refund of the unutilized credit - refund claim rejected as the respondent exported the goods under advance licence scheme by which they were procuring duty free material - refund claim under Rule 5 of Cenvat Credit Rules cannot be denied unless the assessee claimed drawback or rebate – since assessee is not getting benefit of drawback or rebate, refund of unutilized credit is admissible - appeal filed by the Revenue is rejected
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