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Central Excise - Case Laws
Showing 21 to 40 of 2754 Records
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2008 (12) TMI 615 - CESTAT, KOLKATA
Cenvat/Modvat - Capital goods ... ... ... ... ..... ates to availment of irregular duty credit. We find that the lower appellate Authority has proportionately reduced the demand from Rs. 10,08,438/- (Rupees Ten Lakhs Eight Thousand Four Hundred and Thirty Eight only) to Rs. 5,49,640/- (Rupees Five Lakhs Forty Nine Thousand Six Hundred and Forty only) taking into account reversal of the credit. Since the Appellants have merely taken the book credit and have never utilized the same and have subsequently reversed the same, the demand for setting aside the penalty is justified particularly when they had filed necessary declarations showing that they intended to take credit in respect of the impugned materials such as HR Coils etc. Accordingly, we proportionately reduce the penalty from Rs. 10,08,438/- (Rupees Ten Lakhs Eight Thousand Four Hundred and Thirty Eight only) to Rs. 5,49,640/- (Rupees Five Lakhs Forty Nine Thousand Six Hundred and Forty only). The Appeal is thus partly allowed. (Pronounced and dictated in the open court)
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2008 (12) TMI 614 - CESTAT, NEW DELHI
Cenvat/Modvat - SSI exemption opted - Penalty on proprietor ... ... ... ... ..... eme Court does not lay down any law. Moreover, I find that SLP against the Tribunal rsquo s decision in the case of Ashok Iron and Steel Fabricators (supra) had also been dismissed. In view of this, following the judgment of the Tribunal in the case of HMT and Others v. CCE, Punchkula and Ashok Iron and Steel Fabricators (supra), I hold that the Commissioner (Appeals) rsquo s order is correct on this issue. 4. emsp As regards setting aside of penalty on Shri D.M. Rojinder, Proprietor of the respondent firm, since penalty of Rs. 32,000/- under Section 11AC and penalty of Rs. 10,000/- under Rule 173Q(1) was upheld on the respondent firm, in view of Tribunal rsquo s judgment in the case of CC v. N.D. Textiles (supra), separate penalty on the proprietor Shri D.M. Rojinder was not called for and the same was correctly set aside. In view of the above discussion, we find no infirmity in the impugned order. The Revenue rsquo s appeals are dismissed. (Order dictated in the open Court)
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2008 (12) TMI 613 - CESTAT, AHMEDABAD
Demand - Adjustment against refund ... ... ... ... ..... he RT-2 from 1-4-1989 to 31-3-1993 giving deductions on actual basis......... rdquo He has also cited the judgment of Hon rsquo ble Supreme Court regarding time limit in respect of refund and has further stated that opposite also true i.e. time limit for demand is also true and therefore, the case has to be treated as provisional assessment. In para 9 of his order, he has stated ldquo I assess finally RT-12 April 1989 to March 1993...... rdquo . We also agree with the ld. advocate that transaction cannot be split to treat liability as different and refund as different. There is no dispute that the appellants have collected transaction value and therefore, the refund and the demand arise from the same transaction. In view of the above discussions, the amount payable of Rs. 89,68,771/- has to be adjusted against the refund due to the appellants and accordingly, we set aside the impugned order with consequential relief to the appellants. (Pronounced in the Court on 17 Dec. 2008)
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2008 (12) TMI 610 - CESTAT, NEW DELHI
Penalty - Production capacity based duty ... ... ... ... ..... pellate proceedings arising out of the demand stands protected. The view submitted by learned DR that all liabilities including liability of penal action cannot be wiped out for the period during which the scheme was in operation is acceptable. 7.5 emsp In the present case, the delay in payment of tax from 16-4-2001 is in clear violation of the rules relating to compounded levy framed under Section 3A of the Central Excise Act and penalty is imposable under Rule 96ZO of the erstwhile Central Excise Rules. 7.6 emsp Once the delay in payment of dues determined under compounded levy scheme is confirmed, in terms of decision of the Hon rsquo ble Supreme Court of India in the UOI v. Dharamendra Textile Processors cited supra, the penalty is imposable and mens rea is not a necessary ingredient and that there is no scope for any discretion in imposition of any penalty. 8. emsp In the light of the above, the appeal of the party is rejected. (Pronounced in the open Court on 5-12-2008)
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2008 (12) TMI 608 - CESTAT, MUMBAI
Appeal to Commissioner ... ... ... ... ..... d 23-5-08. However, he dismissed the appeal of the appellants on the ground that there is no application for condonation of delay. The proper course on the part of the Commissioner (Appeals) should have been to ask the appellants to file an application for condonation of delay and then condone the delay, being only of 3 days and thereafter proceed to hear the appeal on merits, particulars when he had entertained the stay application and passed the Stay Order dated 23-5-08. Instead of doing so he has dismissed the appeal on the ground of delay. This is not correct. The impugned order passed by the Commissioner (Appeals) is set aside and the case is remanded back to him for de novo decision. The Commissioner (Appeal) is directed to condone the delay of 3 days, which is within his powers to condone, and thereafter hear the appeal on merits and pass appropriate orders in accordance with law after hearing the appellants. The stay petition is also disposed of. (Pronounced in Court)
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2008 (12) TMI 607 - CESTAT, AHMEDABAD
Refund of accumulated CENVAT credit - the refund stands denied on technical and procedural grounds - Rule 5 of Cenvat Credit Rules, 2004
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2008 (12) TMI 606 - CESTAT, AHMEDABAD
Clandestine removal - Evidence ... ... ... ... ..... under the same invoice number thereby proving duplicate transportation. The appellants also have not been able to explain the existence of the second invoice book with the same serial numbers. The transporter has also admitted having transported two consignments with the same invoice and this statement has not been retracted till now. I find that the evidence gathered by the Revenue is sufficient to arrive at a conclusion that the appellants did produce the quantity as per the findings of the lower authorities and cleared the same without payment of duty. Accordingly I find the appeals filed by the appellants cannot be upheld. However in view of the fact that penalty equal to duty has been imposed on the appellant-company, the penalty of Rs. 50,000/- on the Director is harsh. Accordingly the penalty on the Director is reduced to a nominal amount of Rs. 1,000/- (Rupees one thousand only). Appeals are rejected but for the above modification. (Pronounced in Court on 31-12-2008)
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2008 (12) TMI 605 - CESTAT, AHMEDABAD
Refund of Cenvat/Modvat credit ... ... ... ... ..... lizing the credit. She submits that the Larger Bench decision is clearly applicable to this case and therefore cash refund cannot be allowed. 4. emsp I have considered the submissions from both the sides. As rightly pointed out by the ld. Jt. CDR, the Larger Bench decision is squarely applicable to the present case since the appellants are claiming refund of Cenvat credit which has been accumulated. The accumulation is not because the appellants have made exports in which case they would be eligible. It is also not the case of the appellants that they were prevented from utilizing the Cenvat credit and consequently even when there was credit in their account, they had to pay duties from the PLA. There is no provision in Cenvat Credit Rules to allow refund of credit which accumulates because of situations like this. Therefore I do not find anything wrong in the stand taken by the lower authorities and accordingly reject the appeal filed by the appellants. (Pronounced in Court)
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2008 (12) TMI 603 - CESTAT, AHMEDABAD
Cenvat/Modvat - Inputs replaced by job worker ... ... ... ... ..... puts used by the job worker and goods have been received by the respondents after completion of the job work. 4. emsp Having considered the rival submissions, I am inclined to agree with the ld. Advocate that the respondents have also been a victim of the omissions on the part of job worker rather than the vendors. As rightly pointed out, the actual credit taken is less than the duty paid and the imported goods have already been seized and necessary action is being taken separately. As pointed out by the ld. Advocate but for the seizure, nobody would have come to know the replacement of raw materials by the job worker since once the granules are taken out of the bags, it is not possible to make the origin of the goods. In view of the above, I find that the order of the Commissioner (Appeals) has to be upheld and accordingly appeal filed by the Revenue is rejected in view of the fact that credit taken by the appellants is actually less than the duty paid. (Pronounced in Court)
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2008 (12) TMI 602 - CESTAT, NEW DELHI
Warehoused goods - Rate of duty ... ... ... ... ..... hich are not removed from a warehouse within the permissible or extended period are to be treated as goods improperly removed from the warehouse. In such a case the importer is required to pay the full amount of duty chargeable on the goods together with interest, penalties, rend and other charges. It was further held that the duty would be chargeable at the rate applicable on the date of their deemed removal from the warehouse, that is, the date on which the permitted or extended period expired. rdquo 6.4 emsp In the light of the above, we hold that in as much as the warehousing period has expired on 10-7-03, the rate of duty applicable is the rate as on 10-7-03 and the question of applying lower rate of duty which was prevalent as on 21-6-05 (the date of filing bill of entry) does not arise. 7. emsp Therefore, we do not find any reason to interfere with the order of the Commissioner (Appeals). The appeal is, accordingly, rejected. (Dictated and Pronounced in the open Court)
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2008 (12) TMI 599 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... g the installed capacity are claimed to have been brought. Prima facie, just on the basis of non-entry of the ST-31 forms at the Trade Tax check post it cannot be concluded that the goods covered under those forms were not received by the Appellant, when no inquiry in this regard has been made with the suppliers. Same view has been taken by this Tribunal in case of M/s. Himalaya Pipe Industries (Supra) involving a similar issue. We are, therefore, of the view that the Appellant have a prima facie case and there is merit in their plea for waiver from the requirement of pre-deposit of duty demands confirmed and penalties imposed. 4. emsp In view of the above discussion, the requirement of pre-deposit of the duty demands confirmed and penalties imposed is waived for the hearing of these appeals and the recovery thereof stayed till disposal of these appeals or six months from the date of this order, whichever is earlier. (Operative part of the order pronounced in the open court.)
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2008 (12) TMI 598 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... reduction in the overall purchase prices of items covered by the two purchase orders. Further the clarification dated 14-11-95 issued by DOT also confirms the price reduction in respect of these two items. There is no finding that the appellant has received higher prices and corresponding duty amounts from DOT. The claim stands rejected on the ground that the appellant has not produced relevant documents. The documents produced by the appellant clearly support the claim on reduction in prices. It cannot be the case that after reducing the prices for these two items, the DOT had paid the higher prices. We hold that, on merits, the appellant shall be eligible for refund claim. 7. emsp We, therefore, set aside the orders of the authorities below and remand the matter to the original authority for considering the claim subject to their crossing the bar of unjust enrichment. 8. emsp Appeal is allowed by way of remand on the above terms. (Pronounced in the open Court on 29-12-2008)
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2008 (12) TMI 597 - CESTAT, NEW DELHI
Appeal by Department - Authorization by Review Committee - Held that: - Page No. 2 annexed to the Misc. Application does not indicate any of the basic requirements of law to suggest whether there was a Committee and the Committee was constituted with certain number of Members and the Members are identifiable by their name and signature. That page also does not indicate whether there was a decision of the Committee to appeal against an order and whether that order was not legal and proper - appeal dismissed - decided against Revenue.
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2008 (12) TMI 596 - CESTAT, NEW DELHI
SSI Exemption - Brand name, use of brand name of another ... ... ... ... ..... name belongs. While doing the exercise, the learned Appellate Authority should take into account recorded statements used in adjudication under Appeal No 4916/04. (c) The matter being related to 1994, the appellant should submit before the learned Authority sometimes in January, 2009 for fixation of date of hearing. Once the appellants submit for hearing, learned adjudicating Authority shall fix a date of hearing and issue notice and lsquo decide the issue within 3 months of last date of hearing. 10. emsp Since the Appeal Nos. 4915 and 4917/04 emanates from Appeal Nos. 4914-4916/04, these appellants are equally entitled for fair hearing in view of aforesaid decision to remand the Principal Appeals. 11. emsp In the result all the four appeals are remanded. It is made clear that appellants may raise all legal pleas and adduce evidence as admissible by law in the course of hearing and entitle to reasonable opportunity of hearing. (Order dictated and pronounced in the open Court)
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2008 (12) TMI 595 - CESTAT, NEW DELHI
Cenvat/Modvat - Quantum - valuation - freight - includibility - Held that: - duty paid by M/s. D.C.M. Engineering Ltd. having gone into the treasury, through M/s. Guwahati Carbon Ltd., the Respondent D.C.M. Engineering Ltd. should not be debarred to take credit of the same in the absence of any questionable conduct. Finding no material against both the respondents, Revenue fails in both these appeals.
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2008 (12) TMI 593 - CESTAT, BANGALORE
Rectification of mistake ... ... ... ... ..... ase, the order relates to Modvat credit. The Tribunal has held that the Modvat credit is not deniable to the appellants (respondents in the present case). It is the contention of the Revenue that the denial of credit is not an issue in the instant case. Therefore, there is a mistake apparent in the Final Order which relies on the CESTAT rsquo s decision where the issue involved is reversal of Cenvat credit. Further it has been stated that in the said Final Order, this Bench has relied on the decision in case of Aarti Drugs Ltd. v. Commissioner 2001 (133) E.L.T. 385 which has been overruled subsequently by the Larger Bench in the case of Rallies India Ltd. v. CCE, Salem 2007 (208) E.L.T. 25 (Tri.-LB.) . In view of the above, in the interest of justice, we recall the said Final Order and allow the ROM application. Fresh hearing of the matter is listed for 20th February 2009. (Operative portion of the order has been pronounced in the court on completion of hearing on 23-12-2008)
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2008 (12) TMI 592 - CESTAT, MUMBAI
Penalty - Imposition of ... ... ... ... ..... le and therefore it cannot be said that they have no intention to evade duty. Voluntary payment of duty cannot absolve the respondents from the penal consequences. I have also noticed that the penalty under Section 11AC was mandatory in respect of the period after 28-9-96, but since the amount has not been quantified, the matter is remanded back to the Commissioner (Appeals) to determine this amount and penalty equivalent to this amount has to be sustained under Section 11AC. This penalty shall be in addition to penalty already paid amounting to Rs. 50,000/- which was upheld by the Commissioner (Appeals) which is to be considered as penalty imposable under Rule 173Q prior to 28-9-96. The mater is remanded back to the Commissioner (Appeals) for the limited purpose of determining the duty involved during the period 28-9-96 to 31-3-97 and to determine the quantum of penalty imposable under Section 11AC. Accordingly appeal is partly allowed. (Pronounced and dictated in the Court)
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2008 (12) TMI 590 - CESTAT, KOLKATA
Cenvat/Modvat - Capital goods - Appeal to Appellate Tribunal ... ... ... ... ..... nsidering submissions from both sides, I am of the opinion that since the impugned cylinders are falling under Chapter 73, and the Chapter 73 was not specified under the definition of lsquo capital goods rsquo during the material time, nor cylinders were specifically listed, the appellants are not eligible for credit of duty paid on the same as capital goods. As regards the claim for input duty credit, since such a claim is being made for the first time as submitted by the ld. SDR, the matter requires to be examined at the original level. As such, while holding that the appellants are not eligible for capital goods credit, the matter is remanded to the original authority to examine the claim of the appellants for input duty credit in accordance with law. The appellants shall be allowed a reasonable opportunity of hearing to make submissions on their new claim before passing a fresh order. The appeal is thus allowed by way of Remand. (Dictated and pronounced in the open Court)
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2008 (12) TMI 589 - CESTAT, CHENNAI
Demand - Duty liability ... ... ... ... ..... the branded knitted garments cleared by them during the material time. Hence the demand of duty, applicable interest and the penalty. 2. emsp Heard both sides. I find that Rule 12B of the Central Excise Rules, 2002 had provided that a manufacturer of excisable goods such as readymade garments could clear the goods manufactured on job work basis without payment of duty subject to the condition that the recipient pays the applicable duty and undertakes to carryout other statutory formalities. In the instant case, the duty liability on the impugned goods had been duly discharged by the recipient of the goods. Though the transactions were not fully covered by Rule 12B of CER, I find no liability to duty survives on the impugned goods. The demand of duty for a second time on the same goods is not sustainable. Therefore, no penalty also could be imposed. The impugned order is set aside and this appeal allowed. (Operative part of the order was pronounced in open court on 19-12-2008)
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2008 (12) TMI 588 - CESTAT, BANGALORE
Appeal to Appellate Tribunal - Limitation ... ... ... ... ..... -Original by registered post with acknowledgment due. We find that the contention of the revenue that they have pasted the Order-in-Original at the last known address on 25-8-2003 may be correct, but at the same time, if the applicant is away for medical treatment, she could not have noticed the said order. 4.1 emsp Be that as it may, we find that the penalty imposed on the applicant, who is a lady, is to be to the tune of Rs. 10,00,000/- under Section 209A of the Central Excise Rules, 1944, for market value of seized goods of Rs. 1566/-. 4.2 emsp Keeping in mind that the applicant being a lady and would be in a worst position, if she did not appeal against the penalty imposed, in order to meet the ends of justice, we are of the considered view that the application for condonation of delay needs to be allowed. Accordingly, the delay is condoned and the stay application and appeal are taken on record. Registry to list the stay petition. (Pronounced in open Court on 19-12-2008)
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