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Central Excise - Case Laws
Showing 441 to 460 of 2676 Records
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2007 (10) TMI 472
Issues:
Revenue's appeal against setting aside of Orders-in-Original regarding recovery of Cenvat credit on Capital Goods and inputs removed as waste and scrap.
Analysis:
The Commissioner (Appeals) set aside the Orders-in-Original noting that the Capital Goods, after full utilization, were removed as waste and scrap, and therefore, the Cenvat credit utilized did not need to be reversed. The learned Counsel relied on various judgments supporting the non-reversal of credit in such cases. The Revenue cited a contra order from the Kolkata bench involving empty drums considered as waste and scrap. The Counsel argued that only scrap resulting from mechanical working of metals or manufacturing processes are dutiable, not fully utilized Capital Goods. The Tribunal referenced the definition of Waste and Scrap in the Central Excise Tariff, emphasizing that scrap from mechanical working of metals requires duty payment. The Tribunal found the Capital Goods removed were old machineries and not within the dutiable scrap category. The judgments cited by the Counsel, including a Supreme Court ruling, supported the assessee's position. Consequently, the Tribunal confirmed the impugned order, rejecting the appeal.
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2007 (10) TMI 471
Remission of duty - Destruction of goods in fire - sugar destroyed - Held that: - fire was on account of electric short circuit. The same definitely could have been avoided in the same manner in which every fire incident on account of short-circuiting are capable of being avoidable. Every fire incident can admittedly be avoided and that does not mean that the same has occurred on account of unavoidable reasons. In which case no fire accident would get covered by the expression “unavoidable circumstances”. As such, the rejection of remission claim of the appellant was not justified - appeal allowed.
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2007 (10) TMI 470
The Appellate Tribunal CESTAT, New Delhi upheld the order rejecting an appellant's claim for refund of Rs. 3,72,762 as barred by limitation under Section 11B of the Central Excise Act. The Tribunal found that the assessment was not provisional and duty was not paid under protest, leading to the claim being rightly held as barred by limitation. The appeal was rejected.
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2007 (10) TMI 469
Issues:
Challenge to duty demand on paper bags classification under Chapter Heading 48.19 of Central Excise Tariff Act, 1985 for 1996-97 to 1999-2000; Grounds of limitation; Imposition of penalty.
Analysis:
The appellants contested the duty demand upheld by the lower appellate authority, amounting to Rs. 2,81,540, related to the classification of paper bags under Chapter Heading 48.19 of the Central Excise Tariff Act, 1985 for the period 1996-97 to 1999-2000. The issue of limitation was raised, along with a penalty of Rs. 75,000, which was reduced by the Commissioner (Appeals) from an amount equal to the duty.
The absence of representation for the appellant despite notice was noted. After hearing the learned DR and examining the records, it was determined that the extended period of limitation was applicable to the Department. This conclusion was based on the fact that the goods initially described as paper pouches were actually classified under Chapter Heading 48.19, covering paper bags, not paper pouches as claimed. Since the appellants did not challenge this classification in their appeal, it was deemed that they accepted the goods as paper bags, indicating a deliberate misdeclaration. Consequently, the extended period of limitation was deemed valid, and the duty demand was upheld. The penalty reduction by the Commissioner (Appeals) was also upheld, with no grounds for further reduction, leading to the affirmation of the penalty.
In conclusion, the impugned order was upheld, and the appeal was rejected. The judgment was dictated in the open court, finalizing the decision in favor of sustaining the duty demand and penalty imposition as per the findings and legal reasoning provided in the analysis.
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2007 (10) TMI 467
Issues Involved:
1. Demand of duty cleared under AR-4 by debiting the bond of duty involved.
2. Jurisdiction of the Appellate Tribunal under the first proviso to Section 35B(1) of the Central Excise Act, 1944.
Analysis:
Issue 1: Demand of duty cleared under AR-4 by debiting the bond of duty involved:
The case involves an appeal against the Order-in-Appeal No. SVS/102/NGP-I/2005 dated 18-4-2005 regarding the demand of duty cleared under AR-4 by debiting the bond of duty involved. The appellant allegedly did not submit proof of exports, leading to the allegation that they are liable to pay the duty involved in the goods cleared for export. Both lower authorities found the appellant liable for the duty involved in such clearances.
Issue 2: Jurisdiction of the Appellate Tribunal under the first proviso to Section 35B(1) of the Central Excise Act, 1944:
The JDR raised a preliminary objection regarding the jurisdiction of the Appellate Tribunal under the first proviso to Section 35B(1) of the Central Excise Act, 1944. The JDR argued that the appeal should have been filed with the Joint Secretary under Section 35EE of the Act. The first proviso to Section 35B(1) specifies cases where no appeal shall lie to the Appellate Tribunal, including cases of goods exported outside India without payment of duty. As the goods in this case were cleared for export without duty payment by executing a bond, the Tribunal lacks jurisdiction to entertain or dispose of the appeal.
The Tribunal found the preliminary objection raised by the JDR to be correct based on the provisions of the Central Excise Act, 1944. As per the Act, the appeal in such cases is not maintainable before the Tribunal, and the appropriate remedy lies under Section 35EE of the Act, allowing for a revision application to the Central Government of India. Consequently, the appeal was deemed not maintainable and disposed of accordingly.
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2007 (10) TMI 466
Issues:
Rectification of mistake in the Tribunal's order regarding duty payment on basic software, incorrect application of case laws, exclusion of bought-out items, re-quantification of duty payable, and re-determination of penalty.
Analysis:
The applicant sought rectification of the Tribunal's order, claiming that duty payment on basic software had been ignored, and the duty demand was wrongly raised. They argued that the Commissioner accepted that optional/operational software is not liable to duty, but the Tribunal erred in not distinguishing between basic and operational software. The Tribunal was criticized for not following the Supreme Court's decision in Acer India and for dismissing the appeal erroneously. The applicant contended that the duty on basic software had already been paid, and the demand was incorrectly confirmed.
The Tribunal considered the submissions and found no merit in the claim that certain case laws were incorrectly applied. They reiterated that duty was to be charged on the equipment containing basic software, not on the software itself. The Tribunal directed re-quantification of the duty payable and re-determination of the penalty, emphasizing that the value of bought-out items should be included in the duty payment. The Commissioner was instructed to hear the applicant before deciding the duty payable.
Regarding the appeal arising from multiple show cause notices, the Tribunal noted that the defence was based on charges not being subject to duty, rather than claiming duty payment on the software's value. The Commissioner's decision on the duty demand was upheld, but the Tribunal directed a re-evaluation of the differential duty involved in other show cause notices. The applicant was given the opportunity to provide written submissions and supporting documents for re-determination of duty within a specified timeframe.
In conclusion, the Tribunal disposed of the application with directions for re-quantification of duty, re-determination of penalty, and a re-evaluation of duty demands on software values. The Commissioner was tasked with expeditiously reviewing the differential duty involved in the show cause notices, considering the applicant's submissions for a fair resolution.
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2007 (10) TMI 465
Issues:
The issues involved in the judgment are the availability of Cenvat credit on invoices issued by a trader after the omission of Rule 12B of the Central Excise Rules, 2002 and the applicability of Rule 6 of the Cenvat Credit Rules, 2004.
Availability of Cenvat Credit:
The appellants availed Cenvat credit on invoices issued by a trader, M/s. Keetex, for an amount of Rs. 17,265/- and education cess of Rs. 346/- after the omission of Rule 12B of the Central Excise Rules, 2002. The show cause notice contended that M/s. Keetex was not a manufacturer post the omission of Rule 12B, and therefore, the appellants were not entitled to avail credit based on such invoices. The advocate for the appellants argued that they had paid duty on the final products and should not be denied credit based on the supplier's status. However, it was revealed that the appellants were aware that M/s. Keetex was a trader and not a manufacturer, indicating a lack of reasonable care in verifying the credit availed. The Tribunal noted that under Rule 6 of the Cenvat Credit Rules, 2004, only invoices issued by a manufacturer are considered valid duty paying documents for credit. As M/s. Keetex was no longer a manufacturer post the rule omission, the credit based on their invoices was rightly denied, leading to the dismissal of the appeal.
Applicability of Rule 6 of the Cenvat Credit Rules, 2004:
The Tribunal emphasized that under Rule 6 of the Cenvat Credit Rules, 2004, only invoices issued by a manufacturer are recognized as valid duty paying documents for availing credit. In this case, M/s. Keetex, the supplier of inputs, was acknowledged as a trader and not a manufacturer post the omission of Rule 12B. The appellants were aware of this fact but still availed credit based on M/s. Keetex's invoices. As the very documents used for claiming credit were not valid duty paying documents post the rule omission, the denial of credit was deemed appropriate. The Tribunal upheld the order of the Commissioner (Appeals) and dismissed the appeal, reinforcing the importance of adhering to the provisions of the Cenvat Credit Rules for availing credit.
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2007 (10) TMI 463
Issues:
Department's appeal against penalty enhancement from Rs. 25,000 to Rs. 3,75,000.
Analysis:
The appeal before the Appellate Tribunal CESTAT, Ahmedabad involved the Department's challenge against the order of the Commissioner (Appeals) seeking to enhance the penalty from Rs. 25,000 to Rs. 3,75,000. The case revolved around a manufacturer of instant food products, both exempted and dutiable variety, and the eligibility for small scale exemption for the year 2003-04 based on clearances from the previous financial year 2002-2003. The original authority confirmed a duty demand of Rs. 7,73,047 along with interest and imposed a penalty of Rs. 3,75,000 under Section 11AC read with Rule 25 of Central Excise Rules, 2002. The Commissioner (Appeals) reduced the penalty to Rs. 25,000, citing a bona fide error of interpretation by the manufacturer.
The Department, represented by the learned DR, sought to enhance the penalty back to Rs. 3,75,000 as imposed by the original authority. However, the Tribunal noted that the dispute was not related to clandestine removal but rather to the determination of the value of clearances from the previous year, considering both excisable and exempted goods manufactured by the assessee. The Tribunal observed that the mistake in calculating the value of clearances did not indicate any deliberate intention of mis-declaration or suppression of facts. The Commissioner (Appeals) had reduced the penalty based on the manufacturer's misapprehension regarding the exemption criteria and the mitigating circumstances presented.
The Tribunal found no valid grounds to interfere with the Commissioner (Appeals)'s decision to reduce the penalty, as the reduction was based on the manufacturer's genuine misunderstanding and acceptance of duty liability. Therefore, the Tribunal rejected the Department's appeal and disposed of the cross-objection filed by the respondent seeking to uphold the Commissioner (Appeals)'s order. The judgment highlighted the importance of considering mitigating circumstances and genuine errors in penalty imposition in excise duty cases.
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2007 (10) TMI 429
Whether Refund of Cenvat Credit paid on inputs (AED T&T) used in the manufacture of final products exported under rebate claim under Rule 18 of Central Excise Rules, 2002 on payment of duly, is allowed under Rule 5 of Cenvat Credit Rules, 2002 - assessee filed refund claim in respect of unutilised Cenvat Credit of Additional Excise Duty (Textiles and Textile Articles) paid on the inputs - assessee had exported finished goods on payment of Basic Excise Duty under rebate claim covered by Rule 18 of Central Excise Rules, 2002 - no Additional Excise Duty (T&T) was chargeable on the finished goods therefore, the Cenvat Credit of Additional Excise Duty (T&T) paid by the assessee on inputs remained unutilized. The rebate claim made by the assessee under the Excise Rules, 2002 was granted to them. Thereafter, the assessee filed refund claim of Additional Excise Duty (T&T) paid on inputs under Rule 5 of the CC Rules, 2002 – Held that:- refund allowed.
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2007 (10) TMI 427
Stay order - avoidable litigation, which the appellant department has undertaken - argument that under Section 35-C(2A) of the Act, the appeal is required to be heard within 180 days, would also be frivolous as the stay order is not co-terminus with the period prescribed for disposal of the appeal.- Held that:- Supreme Court in the case of Kumar Cotton Mills (P) Ltd. (2005 - TMI - 47203 - SUPREME COURT OF INDIA) department should have been careful in filing such frivolous appeals, which involved unnecessary expenditure and time that could have been devoted on better activities. appeal is accordingly dismissed.
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2007 (10) TMI 426
Cum duty price - Whether the price at which the respondent sold the product should be treated as cum duty price and therefore the excise duty should be deducted from the price for arriving at the assessable value - remanded back to the Commissioner for re-quantification against which the revenue has no grievance Brand name of a foreign company - Whether affixation of brand name of a foreign company but otherwise registered in the name of the Indian company would disentitle the Indian company namely the assessee to the benefit of exemption under SSI notification 1/93 - revenue did not challenge the judgment of the Calcutta High Court in ESBI Transmission Pvt. Ltd. v. CCE (1992 -TMI - 44473 - HIGH COURT, CALCUTTA) and (1994 -TMI - 44498 - HIGH COURT, CALCUTTA), the revenue cannot be permitted to re-agitate the point which is concluded by the aofre-mentioned judgment of the Calcutta High Court in the present appeal, Tribunal against the revenue relying upon a judgment of Calcutta High Court in the case of ESBI Transmission Pvt. Ltd.
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2007 (10) TMI 423
Provisional assessment - refund - unjust enrichment - Assessment of goods on provisional basis on the ground that the quantum of deductions e.g. cash discount, quantity discount and rate difference were not known at the time of removal of goods which came to be known at a later date - request for provisional assessment was granted, refund – held by the Commissioner (Appeals) as well as the Tribunal that once it has been proved as a fact that incidence of tax has not been passed on to the consumer then the refund by credit notes has to go back to them only. In such a case the principle of unjust enrichment would not be attracted because the duty has not been collected and pocketed by the assessee-respondent, diverting such an amount to the Consumer Welfare Fund would be wholly unauthorized and Article 265 of the Constitution would make such an order wholly unconstitutional, appeal filed by the revenue-appellant is without any substance and the same is accordingly dismissed.
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2007 (10) TMI 422
Condonation of delay of 190 days in filing the appeal – Held that:- provision under Section 35C read with Section 35B(3) of the Act, filing of the present appeal has to be viewed as an illustration of frivolous litigation preferred by the Department, fact finding inquiry be held to find out the person who had advised filing of such appeal. The aforesaid inquiry be completed within a period of one month from the date of receipt of copy of this order, the costs of Rs. 5,000/- shall be deducted from the pay of the employee who had advised filing of the instant appeal.
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2007 (10) TMI 421
Levy of excise duty - limitation - constitutional validity of Section 4A of the Central Excise Act, 1944 - Held that:- petitioners had moved this Court within a period of one month from the date of receipt of the impugned order of the Commissioner (Appeals), petitioners filed appeals against order of the Commissioner (Appeals) within one month from today, the Tribunal shall hear and decide the appeals on merits without raising the bar of limitation, appeal disposed off
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2007 (10) TMI 410
remand order - not followed - which was patently in defiance of the Tribunal's remand order - while waiving pre-deposit of duty and penalty and staying recovery thereof pending the Appeal, we also direct copy of this order be forwarded to the Central Board of Excise and Customs for information and further action - Held that: - lower authority cannot go against the order of remand issued by the higher Appellate Authority - Judicial discipline requires that this system which has been followed in our judicial system must be maintained by all judicial and quasi judicial authorities - direction petition disposed of
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2007 (10) TMI 392
Issues:
Challenge to order of Commissioner (Appeals) regarding service tax demand and penalties under Finance Act 1994.
Analysis:
The Revenue challenged the Commissioner (Appeals) order confirming a service tax demand of Rs. 1,65,195/- along with penalties under Sections 76, 77, and 78 of the Finance Act 1994, and interest under Section 75. The dispute arose from the respondent-assessee providing 'Business Auxiliary Services' without registration or payment of due service tax. The Revenue contended that the services fell under 'Business Auxiliary Services' category.
The respondent-assessee defended by stating they received variable commission rates from the bank for their services. The adjudicating authority found the services provided by the assessee were indeed 'Business Auxiliary Services' based on facilitating loans for commercial vehicles and the Board's Circular. The service tax liability was calculated at Rs. 1,65,195/- based on commission amounts received.
The Appellate Commissioner held that service tax was not leviable on a 'sole-proprietary firm' under 'Commercial Concern.' The definition of 'Business Auxiliary Services' included promotion or marketing services for clients. The issue was whether a sole-proprietor qualified as a 'commercial concern' providing such services.
The judgment clarified that a sole-proprietor's business activity constituted a 'commercial concern,' making them liable for service tax under 'Business Auxiliary Services.' The Appellate Commissioner's decision was overturned, emphasizing that a sole-proprietorship was indeed a commercial entity. The case was remanded for a fresh consideration of the merits and agreements related to the service provided.
In conclusion, the impugned order was set aside, and the matter was remanded to the Commissioner (Appeals) for a reevaluation in accordance with the law. The judgment highlighted the erroneous interpretation of 'commercial concern' and emphasized that a sole-proprietor's business activities fell within the ambit of taxable services. The appeal was allowed for further review and decision-making.
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2007 (10) TMI 388
Demand - Limitation - The only issue in this case is whether the appellant could have invoked the extended period of limitation as mentioned in the proviso to Section 11A(1) of the Central Excise Act, 1944?. Held that - assessee acted bonafide in making its clearance and claiming exemption even using other's brand name. extended period of limitation not invocable. Impugned Tribunal's order well reasoned. No substantial question of law arise, appeal dismissed.
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2007 (10) TMI 369
Exemption-Circular No. 796/29/2004-CX, dated 4.9.2004- Notification dated 1.3.2002- This appeal is by the Revenue. The dispute is in regard to the excise duty payable by the respondent in respect of Naptha stored in the warehouse of Mangalore. Naptha to be supplied to M/s. Tanir Bavi Power Project was not liable to pay Central Excise Duty as the same was exempted under the said notification. Thereafter, under Circular No. 796/29/2004-CX., dated 4-9-2004 Government of India has withdrawn warehousing facilities w.e.f. 6-9-2004, revenue called upon the respondent to pay duty plus Education Cess by exercising powers under Section 11A and interest under Section 11AB of the Central Excise Act, 1944. Held that- when there is an exemption for the use of such Naptha for such Power Project, we are unable to accept the arguments advanced by the counsel for the appellant. Therefore, we are of the opinion that the tribunal was justified in allowing the appeal of the assessee relying upon Para 4 of the circular dated 4-9-2004. Accordingly, this appeal is dismissed.
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2007 (10) TMI 312
Issues:
Appeal against order of Customs, Excise and Service Tax Appellate Tribunal dismissing delay condonation applications and main appeals filed by Department challenging orders of Commissioner of Central Excise (Appeals).
Analysis:
The appeals were filed against a common order made by the Customs, Excise and Service Tax Appellate Tribunal, dismissing the Department's applications seeking to condone the delay in filing appeals against orders passed by the Commissioner of Central Excise (Appeals). The Tribunal non-suited the Department for the relief of condoning the delay, leading to the dismissal of the main appeals. The Department argued that they filed the appeals belatedly upon discovering that duty had not been paid by the assessee. The Tribunal expressed dissatisfaction with the Department's explanation, stating that the reliefs sought by the assessee were clear, and the Department should have taken remedial measures promptly. Additionally, the Commissioner's order in favor of the assessee was based on a Supreme Court decision, further supporting the dismissal of the appeals.
The Tribunal found the Department's reason for belated filing not acceptable, emphasizing that the Department should have acted promptly given their expertise and experience. Moreover, the Commissioner's decision in favor of the assessee was based on a Supreme Court ruling, providing no grounds for interference with the Tribunal's orders. Consequently, the High Court dismissed the civil miscellaneous appeals and the connected miscellaneous petitions, upholding the Tribunal's decision.
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2007 (10) TMI 311
Issues:
1. Appeal against order dated 29-8-2007 and application for condonation of delay.
2. Communication received by the petitioner stating the appeal was received after four years.
3. Nature of the appeal as a statutory appeal under the provisions of the Act.
4. Lack of opportunity given to the petitioner by the Commissioner (Appeals) before passing any order.
5. Setting aside the impugned communication and directing the Commissioner (Appeals) to issue notice to the petitioner and dispose of the appeal.
The judgment addresses the petitioner's appeal against an order dated 29-8-2007 and an application for condonation of delay. The communication received by the petitioner mentioned that the appeal was received after four years, leading to no action being taken on it. The court highlighted that the appeal was a statutory appeal under the Act, emphasizing that the Commissioner (Appeals) must follow the proper procedure for hearing and disposing of the appeal. It was noted that in this case, the Commissioner did not provide an opportunity to the petitioner before passing any order, except for the communication dated 29-8-2007.
The court set aside the communication dated 29-8-2007, directing the Commissioner (Appeals) to issue notice to the petitioner and proceed with the appeal. All questions, including whether the appeal was barred by limitation, were left open for consideration. The petitioner was required to appear before the Commissioner (Appeals) on a specified date, with further directions to be given for the hearing. Ultimately, the rule was made absolute with no order as to costs, ensuring that the petitioner's right to a fair hearing and due process was upheld in the appeal proceedings.
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