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Central Excise - Case Laws
Showing 21 to 40 of 195 Records
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2010 (12) TMI 1141 - CESTAT KOLKATA
Valuation - capacity based production - penalty - Held that: - The writ petition of the assessees are allowed and impugned provisions in Rules 96(ZO), (ZP) and (ZQ) permitting minimum penalty for delay in payment, without any discretion and without having regard to extent and circumstances for delay are held to be ultra vires the Act and the Constitution
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2010 (12) TMI 1139 - CESTAT BANGALORE
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... ... ..... in its own order in the case of CERA Boards and Doors, National Board & Others Final Order Nos. 670 to 687/2010, dated 1-4-2010 - 2014 (313) E.L.T. 113 (Tribunal) ; Plama Boards Pvt. Ltd. Final Order Nos. 1145-1147/2010, dated 26-8-2010 2010 (262) E.L.T. 1058 (T) passed subsequently. Obviously the facts of these cases are distinguishable. Therefore, the argument of the Revenue in this regard is not acceptable. 7. The same view was held by us in the cases of National Board & Others and Plama Board & Others etc. We do not find any reason to deviate from this consistent stand of ours. In the circumstances, we set aside the impugned order. We remand the dispute regarding duty liability of the assessee and its penal liability for a fresh decision by the Original Authority. The penal liability of the individuals shall also be decided in de novo proceedings following principles of natural justice. The appeals are disposed of. (Pronounced in open Court on 8-12-2010)
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2010 (12) TMI 1138 - CESTAT NEW DELHI
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... ... ..... s of Section 11AC. 7. It is a clear case of failure to account for inputs on which Cenvat credit has been taken and also to account for final products which have been accounted in the statutory records. The appellants are under strict obligation to account for inputs on which the credit has been taken. Failure to account for clearly attracts the provisions of Rule 15 of the Cenvat Credit Rules. The appellants are also under strict obligation to account for manufactured goods including its disposal and failure in this regard penal provisions under Rule 25(1)(b) of the Central Excise Rules, 2002. 8. In the absence of evidence of clandestine removal, I hold that there is scope for reducing the penalties imposed on the appellants. Taking the entire facts and circumstances of the case into account, I reduce the penalty from ₹ 2,80,198/- to ₹ 75,000/- (Rupees Seventy-five thousand only). But for the reduction of penalty as above, the impugned order is upheld.
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2010 (12) TMI 1137 - CESTAT AHMEDABAD
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... ... ..... We have considered the submission made by both the sides. We find that the explanation to Section 11AC is very clear and even in the case of show cause notice issued prior to the date of introduction of new Section 11A in the year 2000. If the order determining the duty under sub-section (2) of Section 11A is passed after the introduction, new Section 11AC of Central Excise Act, would be applicable. In this case, the duty liability had also been challenged and the Tribunal in the order passed in the year 2006 had upheld the duty demand also. Therefore, it can be safely said that duty determination under Section 11A(2) of Central Excise Act, 1944 was done subsequent to the year 2000 only and therefore, matter is squarely covered by the explanation to Section 11AC of the Central Excise Act, 1944. In view of the above, we find no merit in the application filed by the Revenue for rectification of mistake and accordingly, we reject the same. (Dictated and pronounced in the Court)
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2010 (12) TMI 1136 - CESTAT NEW DELHI
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... ... ..... 3Q in relation to the period prior to 28-9-1996. 30. As far as the claim regarding Cenvat credit is concerned, since the same is required to be claimed in accordance with the provisions of law before the competent authority which has to satisfy himself on the basis of materials to be placed before him in support of such claim, it is too premature to deal with this aspect. Nothing prevents the appellants from taking necessary steps in accordance with the provision of law. 31. In the result, therefore, while appeals filed by Shri Hanuman Singh, Shri R.L. Gupta and Shri Madhukar Mishra succeed as far as they relate to personal penalty imposed under Rule 209. However, they fail as far as penalty under Rule 210 is concerned. The penalty cannot exceed one thousand rupees for each of them. The appeals are accordingly, partly allowed by reducing the penalty to one thousand rupees each. As far as appeal filed by M/s. K.M. Gases is concerned, the same fails and is dismissed.
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2010 (12) TMI 1134 - CESTAT CHENNAI
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... ... ..... yer and not to consignment agent. 2. On hearing both sides and being satisfied that, in this case consignment agent himself has purchased the goods that is to say, that the consignment agent himself is the buyer/customer, there is no reason why discount should not be given. Further, consignment agent is not related to manufacturer/assessee. In this view of the matter, we uphold the impugned order and reject the appeal. (Dictated and pronounced in open court)
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2010 (12) TMI 1133 - CESTAT NEW DELHI
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... ... ..... led, still 22 days of limitation period were at the disposal of the appellants to file the appeal within the period of limitation. 4. Undisputedly, the order of the Revisionary Authority was communicated to the appellants on 11th April, 2010. Applying the normal rules applicable to the parties while calculating the period of limitation, in case where the party sincerely persue the remedy in a wrong forum, pursuant to the dismissal of the Revision application even if the appeal was filed on or before 2nd May, 2010, it would have been within the period of limitation. However, the appeal was filed only on 1st July, 2010. The application nowhere discloses any justification for delay beyond 2nd May, 2010 till the date of filing of the appeal. In the absence of any explanation in this regard, it is difficult to hold that there was any sufficient cause disclosed for such delay and therefore, on that account, the said delay cannot be condoned. Hence the application is rejected.
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2010 (12) TMI 1132 - GUJARAT HIGH COURT
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... ... ..... of India (supra). 7. The controversy involved in the present case, therefore, stands directly concluded by the decision of the Apex Court in the case of Collector of Central Excise, Ahmedabad v. Orient Fabrics Pvt. Ltd. (supra), whereas the controversy involved in the case of Ujagar Prints v. Union of India (supra) has no direct bearing on the controversy involved in the present case. 8. In the circumstances, in the light of the decision of the Apex Court in the case of Collector of Central Excise, Ahmedabad v. Orient Fabrics Pvt. Ltd. (supra) the reference is answered in the negative. The provision of sub-section (3) of Section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957, prior to its amendment by Section 63(a) of the Finance Act, 1994 did not incorporate by reference the provisions of the Central Excise Act, 1944, relating to confiscation of goods, offences and penalties also. 9. The reference stands disposed of accordingly.
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2010 (12) TMI 1130 - CESTAT MUMBAI
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... ... ..... uty on the finished products namely, toilet soaps is discharged under Section 4A on the basis of MRP. Since the value of soap takes into account the escalated cost of Sandalwood oil there cannot be any short payment of duty on the toilet soaps at Bangalore. In effect, the Government did not suffer any loss.” and arrived at a decision that the Rule 7 is illustrative in nature and cannot be placed any fatter on rule 3. 6. From the above decision of the Hon’ble High Court it is very much clear that in case of suppression of facts the assessee is not entitled to avail input credit on the strength of supplementary invoice. As in this case there is no specific allegation of suppression has been found against the respondent. Hence, the respondents are entitled to avail input credit on the strength of supplementary invoice. Accordingly, I do not find any infirmity with the impugned order, the same is held. Appeal filed by the Revenue is rejected. (Dictated in Court)
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2010 (12) TMI 1129 - CESTAT MUMBAI
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... ... ..... sed. The statement made by the respondent in passing while replying to the show cause notice was, at best, a premature claim for refund. 6. Having found the aforesaid payment made by the respondent to be a payment towards Central Excise duty and education cess on the scrap in question, I must hold that any claim for its refund should have been made under Section 11B of the Central Excise Act by following the prescribed procedure. This did not happen in the present case. The view taken by the lower appellate authority is beyond the statutory scheme. I am not impressed with the submission of the learned counsel that the respondent was not aware of the procedure at the material time. Indisputably, the respondent has been in the business of manufacture of machines for over a decade and hence cannot be expected to be ignorant of the Central Excise provisions and procedures. 7. In the result, the impugned order is set aside and this appeal is allowed. (Dictated in Court)
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2010 (12) TMI 1127 - CESTAT CHENNAI
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... ... ..... refore, the lower authority has annulled the impugned order-in-original and has directed the adjudicating authority to pass appropriate order after observing the principles of natural justice. It is accepted by the department that the lower appellate authority has the power under the law to annul an order passed by the original authority if the same suffers from violation of principles of natural justice. The second part of the order directing the original authority to decide the matter afresh instead of straightaway allowing the appeal against the Revenue, is in fact beneficial to the department as the matter can now be reheard and re-decided. By such an order, the Committee of Commissioners, which authorized filing of this appeal, cannot be aggrieved. The appeal filed against such order, which is beneficial to the Revenue, is therefore baseless and the same is rejected. The cross-objection filed by the respondents stands disposed of. (Dictated and pronounced in open Court)
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2010 (12) TMI 1125 - CESTAT NEW DELHI
CENVAT credit - intermediate goods - Steel Wire ropes - Tubes/sheets - Non ST Billets/Blooms/Steel forgings/MS Rounds & Flats/Billets - denial on the ground that the goods are not inputs as declared - duty paying invoices
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2010 (12) TMI 1123 - CESTAT NEW DELHI
CENVAT credit - transfer of capital goods to another unit under challan - the appellant were under impression that they could avail the Cenvat credit, that the unit at E-54, Road No. 5 was doing the job work for the main unit and, therefore, it was permissible for the appellant to avail the Cenvat credit u/r 4(5)(a) of the CCR, 2004 - Held that: - since the unit at E-54, Road No. 5, VKI Area, being is unregistered unit, not duty paying, the same would not have been able to take capital goods Cenvat credit in respect of the capital goods installed there and obviously for this reason only, the receipt of the capital goods has been shown in the unit at C-61, VKI Area and Cenvat credit has been availed while the capital goods were actually meant for as installed in the other unit - credit rightly denied - appeal dismissed - decided against appellant.
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2010 (12) TMI 1122 - CESTAT MUMBAI
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... ... ..... challenged. In that circumstances the decision of Priya Blue Industries Ltd. (supra)/Flock (India) Pvt. Ltd. (supra) are not applicable to the facts of this case. 9. As the Larger Bench of this Tribunal has held the doctrine of unjust enrichment is applicable in the case of subsequent issue in credit notes of duty in the case of Grasim Industries (supra), the doctrine of unjust enrichment is applicable to this case. To examine whether the appellant have passed on the duty incidence on their buyer or not, the matter needs examination at the end of the adjudicating authority. Accordingly, the matter is sent back to the original adjudicating authority to examine the issue of unjust enrichment after giving a reasonable opportunity to the appellant to produce the documents in support of their claim and to pass the appropriate order. 10. With these observations, the impugned order is set aside and the appeal is allowed by way of remand. (Pronounced in Court on 7-12-2010)
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2010 (12) TMI 1120 - ALLAHABAD HIGH COURT
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... ... ..... an appeal before the Additional Excise Commissioner (Licensing and Industrial Development), U.P., Allahabad, which has been decided by the impugned order. Learned counsel for the petitioner submitted that the petitioner has been granted licence after issuing the advertisement and, therefore, the petitioner should be heard by the appellate authority while deciding the appeal of Sri Hari Shankar Mishra. I do not find any substance in the argument of learned counsel for the petitioner. Sri Hari Shankar Mishra has filed an appeal against the order of the District Magistrate cancelling the licence. The petitioner was not at all in picture and was not the party in the matter, therefore, there was no question of giving him opportunity of hearing in the appeal filed by Sri Hari Shankar Mishra. The grievance of Sri Hari Shankar Mishra was against the licensing authority, who has cancelled the licence. In view of the above, the writ petition has no merit and is accordingly dismissed.
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2010 (12) TMI 1114 - CESTAT CHENNAI
Essentiality certificate - demand of duty on the ground that the essentiality certificate granted to the assessee for the purpose of clearance of the goods without payment of duty in terms of N/N. 10/97-C.E., dated 1-3-1997 had been subsequently cancelled - Held that: - although the essentiality certificate, as per the notification above mentioned, was granted initially, it was subsequently cancelled on 26-6-2002. The cancellation also specifically states that the Form-B for availing customs and excise duty exemption issued earlier also stands cancelled - thus, the demand has been rightly confirmed - however, the prayer of the assessee for extending the benefit of cum-duty price is allowed - appeal allowed - decided partly in favor of assessee.
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2010 (12) TMI 1109 - UTTARAKHAND HIGH COURT
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... ... ..... or 85.02. No doubt, therefore, in respect of excise duty paid on parts while repairing the machine in question, respondent can take advantage of Rule 57Q, but having regard to the fact that neither in the order, nor in the bill it having been mentioned that the supply would only be of parts, on the other hand the same depicts repairing and testing of the parts handed over by the respondent to Jyoti Limited for repair and testing, Rule 57Q may not be applicable. However, the matter should not be closed thus. It would be appropriate to remit back the matter to the Tribunal, inasmuch as, Tribunal has not considered whether repairing and testing, as was ordered and subsequently as was billed could be one of the goods specified in the schedule to the Tariff. The Tribunal is directed to deal with the matter as quickly as possible. In the premises, the order of the Tribunal impugned in the appeal is set aside and the matter is remitted back to the Tribunal for fresh consideration.
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2010 (12) TMI 1076 - CALCUTTA HIGH COURT
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... ... ..... plication for review of the said order passed by the Commissioner within seven days from date. If such application is filed, the Commissioner shall dispose of the same by passing a reasoned order within a fortnight after giving an opportunity of hearing. As prayed for, the notice dated 21st September, 2010 regarding realisation of the dues, as evident from annexure P-8, shall remain stayed till reasoned order is passed and communicated on the application for review. If, however, no application for review is filed within the time as stipulated, the respondent authorities in that event are at liberty to proceed with the notice dated 21st September 2010 in accordance with law. 3. Since the writ petition is disposed of at the stage of admission without calling upon the respondents to file affidavits, allegations made are deemed to have been denied by them. 4. Urgent photostat certified copy of this order be made available to the parties upon compliance with requisite formalities.
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2010 (12) TMI 1047 - ALLAHABAD HIGH COURT
Whether the option either to pay duty and avail exemption under Notification No. 53/88 or 14/92 is vested in the unit – Held that:- there is neither any specific, nor implied bar in the 1986 Notification from opting for exemption under the other notification. On the contrary, the explanation (ii) to the 1986 Notification suggests that in respect of packing materials, it is a kind of a residuary notification and is applicable in case an assessee is not taking advantage of any other exemption. It impliedly permits taking of advantage of any other exemption, decision in favour of the Assessee and against the Department
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2010 (12) TMI 1043 - GUJARAT HIGH COURT
Whether re-glass lining of old vessels amounts to manufacture or not - Tribunal has not appreciated the fact that the goods once returned to the respondent’s factory are subjected to glass lining and without this essential process, their commodity has no commercial/marketable value inasmuch as either the goods returned have to be scrapped or re-manufactured - in the case of Shriram Refrigeration Industries (2008 -TMI - 48413 - HIGH COURT OF JUDICATURE FOR ANDHRA PRADESH AT HYD) held that the question as to whether any process undertaken by a manufacturer amounts to manufacture or not, and if the goods produced during that process are excisable or not would fall within the meaning of the expression determination of rate of duty of excise or the value of the goods for the purposes of assessment of duty’ used in Section 35G(1) and Section 35L(b) of the Act, appeal involves determination of a question relating to the rate of duty of excise or value of goods for the purposes of assessment, would lie before the Supreme Court and not before this Court, appeal dismissed as not maintainable
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