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Central Excise - Case Laws
Showing 41 to 60 of 195 Records
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2010 (12) TMI 1042 - PUNJAB & HARYANA HIGH COURT
Whether the learned Tribunal was justified in dismissing the appeals as not maintainable on the grounds that the appeals filed by the appellants is supported by an undated Review Order without the date - it was alleged that the assessee contravened Rule 8 of the Central Excise Rules, 2002 and failed to pay the requisite duty - demand of duty was sustained but demand of interest was set aside on the ground that there was neither any proposal for demand of interest in the Show Cause Notice nor quantification of interest amount was made in the Order-in-Original. The Commissioner (Appeals) also set aside penalty of ₹ 10,000/-. Appeal of the revenue to the Tribunal has been dismissed as not maintainable, appeal is dismissed
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2010 (12) TMI 1038 - GOVERNMENT OF INDIA, MINISTRY OF FINANCE
Remission of duty - loss of goods due to natural causes - revision application - goods were stored in their registered premises, wherein a theft is reported to have taken place resulting in loss of indigenous goods and imported goods - Theft of goods cannot be treated as loss due to natural causes, can be due to negligence on the part of the applicant - remission of duty was not available on loss of warehoused goods, Revision application is rejected being devoid of merit
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2010 (12) TMI 1037 - CESTAT, NEW DELHI
Condonation of delay of 220 days in filing the appeal - appellants had challenged the show cause notice issued in the matter by way of writ petition, meanwhile in the adjudication proceedings, the order passed, appellants withdrew the Writ Petition and filed another writ petition challenging the adjudication orders - appellants have challenged the order by way of an appeal – Held that:- no party is entitled to have two parallel proceedings in two different forums against the same order passed by the lower authority. If the appellants has chosen to challenge the order by way of writ petition, and the same was pending before the Hon’ble High Court, it was the duty of the appellants and their Advocate to bring the said facts to the notice of the Tribunal on the said date, order passed in the said stay applications does not disclose the said facts having been brought to the notice of the Tribunal, appellants and the Advocate for the appellants are required to make submissions in that regard
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2010 (12) TMI 1034 - GUJARAT HIGH COURT
Secret information about evasion of Central Excise Duty - Advance reward of Rs. 2,00,000/- was given to the petitioner - final reward was not granted - grant of reward is an an ex gratia payment and there is no vested right in any person to claim a reward as a matter of right - respondents not performing any statutory duty imposed upon them and, therefore, it cannot be said that there is failure on their part to discharge any statutory obligation warranting exercise of writ jurisdiction to compel performance of such duties prescribed by any statute - policy of reward is only a ‘scheme’ and not a ‘statute’, petitioner is estopped from raising the claim as a matter or right, appeal dismissed
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2010 (12) TMI 1030 - GUJARAT HIGH COURT
Penalty - Cenvat credit denied - suppression of facts/fraud or misdeclaration - investigations revealed that the suppliers of grey fabrics who had issued the invoices, on the basis of which the assessee had availed credit, were found to be non-existent/fake/bogus - Held that:- Examining the facts of the present case both the Commissioner (Appeals) as well as the Tribunal have recorded concurrent findings of fact to the effect that evidence in record is not sufficient to conclude that the assessee is a party to the fraud. On behalf of the revenue, nothing has been pointed out to dislodge the concurrent findings of fact recorded by both the appellate authorities, it is apparent that the conditions precedent for invoking the provisions of Rule 13(2) of the Rules are clearly not satisfied. In the circumstances, no infirmity can be found in the impugned order of the Tribunal so as to warrant interference, appeal is dismissed.
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2010 (12) TMI 1029 - RAJASTHAN HIGH COURT
Job work - Demand - assessee cleared S.S. Flats falling under sub-heading No. 7220.10 of Central Excise Tariff Act, 1985 without payment of duty in terms of the Notification No. 42/2001-C.E. (N.T.), dated 26-6-2001 for conversion into S.S. Cold Rolled Patta on job work basis - Adjudicating Authority observed that the assessee had not procured excisable goods under the relevant provisions and hence, applicability of the provisions of Rule 19(2) and 19(3) as well as Notification dated 26-6-2001 was ruled out - Held that:- Goods were removed by the assessee under Bond with the permission of the Department and then, after processing, the goods were cleared for export; and the final product has been exported. The suggestion as made in this appeal that at each stage, a final product came into existence, neither appears to be in conformity with the record nor seem to have been suggested before the Appellate Commissioner or the Tribunal, Commissioner cannot be faulted in setting aside the order dated 27-4-2005; and the Tribunal has also rightly dismissed the appeal filed by the Revenue, appeal dismissed.
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2010 (12) TMI 1025 - GOVERNMENT OF INDIA
Revision applications - export under the claim for rebate of duty paid from the balance of accumulated Cenvat credit - applicants were not availing the cenvat credit on the grey fabrics but were taking the cenvat credit on the chemicals and other raw materials used in the manufacturing/processing of the processed fabrics thus entitled to avail both the notification 29/2004-C.E. and 30/2004-C.E. simultaneously if they keep separate records for the same - Held that:- Commissioner (Appeals) has drawn a conclusion that as the applicants were not claiming the cenvat credit on the inputs used in the manufacture of the exported goods, hence they were working under exemption Notification No. 30/2004-C.E., dated 9-7-04. Govt. observes that this conclusion of the Commissioner (Appeals) is without any basis. Moreover, the option is with the manufacturer to avail or not to avail cenvat credit on the inputs as the availment of cenvat credit is a beneficial scheme and there is nothing in the Notification No. 29/2004-C.E., dated 9-7-04 for the manufacturer to compulsorily avail cenvat credit on the inputs. There is bar only on non-availment of cenvat input credit under Notification No. 30/2004-C.E., dated 9-7-2004, rebate of duty paid on export goods under Notification No. 29/2004-C.E., dated 9-7-2004 is admissible to the applicants if they have complied with the Board Circular Nos. 795/28/2004-CX., dated 28-7-2004 and 845/3/2006-CX, dated 1-2-2007. The impugned orders are set aside. Government remands back to original adjudicating authority to decide the cases afresh after giving proper opportunity to the application keeping in mind the above observations, Revision Applications is disposed off in above terms.
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2010 (12) TMI 1024 - GOVERNMENT OF INDIA
Revision application - assessee seeking the remission of duty under Rule 21 of the Central Excise Rules, 2002. was rejected by Asstt. Commissioner has rejected the remission of duty treating the loss due to reprocessing of sugar - Held that:- As there was a fire in the factory and fire loss has occurred. Department has not denied the incident of fire in factory. Commissioner (Appeals) has allowed the remission of duty treating it as a fire loss on the basis of various documentary evidences cited by him in his order. Government finds that fire loss being a natural loss is very well covered under Rule 21 of Central Excise Rules, 2002. no infirmity in the order-in-appeal, Revision application is rejected being devoid of merit.
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2010 (12) TMI 1022 - CESTAT, NEW DELHI
Rectification of mistake - appellant was not entitled to the benefit under Notification No. 43/2001, breach of law could not grant immunity to the appellant for which adjudication order was confirmed and first appellate order was upheld. Submission of the learned Council would have been appreciated if penalty issue had been raised by substantial argument at the time of hearing appeal. But appellant failed to appear and make submissions - Held that:- patent mistake shall only be rectified without review of the order in entirety. Further when appeal is dismissed on merit there remains no scope to grant immunity from penalty. Merits of the case not being possible to be reviewed by a Rectification Petition, there is no scope to substitute the order by a fresh order. Consequently, present application for ROM is dismissed.
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2010 (12) TMI 1021 - CESTAT, MUMBAI
Value of accessories in the assessable value - Demand of duty and penalty with penalty on Director of the respondent unit - erection and commissioning charges and the value of accessories - there is a reference in the show-cause notice to the SCADA type system and inclusion of additional consideration towards supply of accessories, erection and commissioning charges - Held that:- Department had sought for inclusion of installation, erection and commissioning charges and not as charges for completing the product. Therefore, the Commissioner (Appeals) has rightly disallowed the inclusion of such installation charges as per Sl.No. 10 of the Board’s Circular, Revenue could not produce any evidence that accessories supplied were integral or essential part of the product supplied by the respondent to their customers, no infirmity in the impugned order-in-appeal, the same is upheld and the appeals which are devoid of merit are dismissed.
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2010 (12) TMI 1019 - CESTAT, MUMBAI
Input credit procured on the strength of Cenvatable invoice/Bills of Entry wherein the name of the buyer was mentioned is the predecessor of the respondent from whom the respondent has taken over their business in total - Revenue is in appeal is that as no credit was lying against these inputs at the time of taking over of the unit of M/s. Otis Elevator Co. (I) Ltd. by the respondent, the respondent is not entitled to take the credit - Held that:- Omission on the part of the consignor not showing consignee’s name and address cannot result in denial of substantive concession to the assessee inasmuch as in the instant case the receipt of the inputs has not been disputed, neither the duty paid nature of the same, hence the assessee is entitled to take the credit on the inputs procured by them against the Cenvatable invoice. respondent is entitled to take input credit on the inputs procured by them on the strength of Cenvatable invoice/Bill of Entry against which they have received the goods in their factory, appeal filed by the Revenue is rejected.
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2010 (12) TMI 1017 - CESTAT, MUMBAI
Refund - unjust enrichment - refund claim of an amount equal to CENVAT credit of CVD taken in their CENVAT account - Held that:- It appears from the text of the final order that there was no mention of any form of refund claim on behalf of the Revenue when the final order was passed. The original authority is, therefore, required to consider the pending refund claim dated 18-5-2004 in terms of the remand order. This requirement is very much clear from the text of the final order. The obvious need not be reiterated. Therefore, the application is rejected.
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2010 (12) TMI 1015 - CESTAT, BANGALORE
Undervaluation - Demand - Search and seizure - Rule 11 of Central Excise Valuation Rules, 2000 - principles of preponderance of probability - Held that:- Statements recorded from Shri L.S. Navin cannot be relied on unless it is established by the Revenue that his statement had not been obtained under duress. There is no evidence of coercion adduced by Shri L.S. Navin. Moreover, his initial statement was incriminating since he had paid excess amount towards purchase of plywood which had not suffered duty. He had thus abetted evasion by the BA group of firms. This deposition found corroboration in the slips recovered. Shri Manoj Kumar Amin and Shri J.M. Ashraf are not third parties. They are employees of the assessee. If they were forced to give incriminating statements against the assessee, they should have retracted the same without delay. In the absence of any retraction within a reasonable period of giving the statements, their retraction is not acceptable. Statements rendered under Section 14 are valid evidence and cannot be doubted in the normal course. It would appear that in respect of the invoices covered by the slips which were recovered, evasion to the extent of 67% as found by the Adjudicating Authority is sustainable.
Original Authority rightly (relied on the decision of the Larger Bench of the Tribunal in the case of Nizam Sugar Factory (1999 (10) TMI 123 - CEGAT, NEW DELHI) to hold that five year period is available from the relevant date for the Department to raise demand through a show-cause notice. The date of knowledge by the Department did not curtail this period. The Hon’ble High Court of Gujarat interpreted the provisions of Section 11A vide its judgment in the case of CCE v. Neminath Fabrics Pvt. Ltd. [2010 (4) TMI 631 - GUJARAT HIGH COURT]. Therefore find that the demand is not barred by limitation. The ld. Counsel for the Revenue had argued that the case of evasion of the Revenue is established by the fact that in the case of direct sales of goods to Tata Coffee Ltd., the assessee had raised invoices for the following three varieties of plywood at much higher prices compared to prices invoiced for such goods when sold to others.
As regards applying the finding of evasion in respect of clearances other than those covered by the documents recovered, the ld. Counsel for the Revenue sought to apply the principles of preponderance of probability. If we were to apply the above principle, we have to hold that the assessee had evaded duty to the extent of 63.18% in respect of all the clearances during the material period. Even if we were to hold that the assessee had willfully short paid duty on all clearances, the probability of the assessee short paying duty to the extent of 70% or 30% or any other amount in respect of any of these clearances cannot be ruled out. We are not in a position to confirm demand against any assessee ignoring such a probability. By following the preponderance of probability in the manner suggested by the Revenue, we would be passing orders which would contain a definite element of arbitrariness - set aside the impugned order and 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
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2010 (12) TMI 1013 - MADRAS HIGH COURT
Penalty - Tribunal remanded the matter back to the Original Authority for causing a verification of the respondent’s claim that the furnace oil moved to its Nagapattinam Unit following the warehousing procedure has been process/cleared on payment of appropriate duty - Held that:- Tribunal set aside the penalty. The respondent did not challenge the liability of payment of duty though it was under the bona fide belief that it could move the furnace oil produced in the Manali Unit duty-free under the warehousing procedure to its Nagapattinam Unit, where it could be assessed to necessary duty liability. When such movement of furnace oil produced at Manali Unit to Nagapatiinam Unit was made, the same was not questioned by the Department, which weighed with the Tribunal while considering the scope of levy of penalty, such a perception weighed with the Tribunal for setting aside the penalty does not give any scope for any question to be considered in this appeal, especially when the Tribunal remitted the matter back to the Original Authority to assess the duty liability after giving an opportunity to the respondent, appeal, therefore, fails and the same is dismissed
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2010 (12) TMI 1007 - GOVERNMENT OF INDIA
Revision application - rebate claims rejected on the grounds of limitation as not filed within one year period from the date of let export order - Held that:- Para 2.4 of Chapter 9 of Central Excise Manual, the following lines are also mentioned that “In case any document is not available for which the Central Excise or Customs Department is solely accountable the claim may be received so that the claimant is not hit by limitation period, initial date of filing of the rebate claim i.e. 14-2-06 is the relevant date under Section 11B of the Central Excise Act, 1944. Hence, the rebate claims are not hit by limitation. Government observes that technical deviations or procedural lapses are to be condoned if there is sufficient evidence as the export of the duty paid goods. Government finds no infirmity in the impugned order-in-appeal and therefore upholds the same, Revision application is rejected being devoid of merit.
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2010 (12) TMI 1001 - CESTAT, KOLKATA
CENVAT credit on basic Customs Duty and Special Additional Duty - Demand of credit along with interest and penalties questioned on the ground of time-bar - case of the Revenue that credit was availed during the period June 2003 to March 2004 and Show Cause Notice was issued on 4-6-2008 demanding duty after denying credit and for imposition of penalty alleging suppression with intent to evade payment of duty - Respondent argument is that demand is time barred as held by the Commissioner (Appeals) on the ground that Audit memos were issued in the year 2006 and therefore after 2006 there is no suppression on the part of the Respondent - Held that:- Statements of merchant manufacturers who appeared indicate that they had agreed that they had sent the grey fabrics to the respondent and received the resultant processed fabrics, without cover of central excise invoices and without payment of central excise duty leviable thereon during the relevant period. Thus, in the facts of the present case suppression stands admitted by the respondent assessee and established by evidence on record and as a natural corollary, the proviso to sub-section (1) of Section 11A would stand attracted. In the circumstances, the impugned order of the Tribunal whereby it has been held that the show cause notice issued beyond the period of six months from the date of knowledge is barred by limitation is clearly contrary to the provisions of Section 11A of the Act and as such cannot be sustained.
No merit in the contention of the Respondents that the Revenue was aware of the irregularities in the year 2006 when Audit memos were issued hence the allegation of suppression is not sustainable. The impugned order is set aside and Appeal filed by the Revenue is allowed and order passed by the adjudicating authority is restored. Against assessee.
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2010 (12) TMI 996 - GUJARAT HIGH COURT
Interest under the Sugar Export Promotion Act, 1958 - Held that:- As it is apparent that interest can be levied and charged on delayed payment of tax only if the statute that levies and charges the tax makes a substantive provision in this behalf - section 7 of the Sugar Export Promotion Act, 1958 does not make any provision for levy and charge of interest on the duty of excise payable under sub-section (1) thereof - Tribunal was justified in holding that there being no provision for interest in the Act, there was no justification or warrant to confirm the interest - Decided in favor of the assessee
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2010 (12) TMI 995 - GUJARAT HIGH COURT
Voluntary payment made to avoid interest penalty - whether be treated as pre-deposit under Section 35-F of the Central Excise Act, 1944 and accordingly, the refund of the same not subjected to the test of unjust enrichment? - Held that:- The controversy involved in the present appeal is no longer res integra inasmuch as, this Court in the case of Commissioner of Customs (Preventive) v. Ghaziabad Ship Breakers Ltd. [2010 (10) TMI 151 - GUJARAT HIGH COURT] in the context of the provisions of Section 129E of the Customs Act, 1962 which are in pari materia with the provisions of Section 35F of the Central Excise Act, 1944, has held that any amount deposited during the pendency of an appeal would be by way of pre-deposit under Section 129E of the Customs Act and has to be treated accordingly. The controversy in issue in the present appeal, therefore, stands concluded against the revenue, by the said decision of this Court.
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2010 (12) TMI 994 - GUJARAT HIGH COURT
Penalty on the Director - Tribunal set aside penalty levy - Held that:- Respondent is the active Director who is looking after the day to day working of the Unit and has admitted in his statements that the goods were cleared illicitly without payment of duty and was knowingly involved in the evasion of central excise duty.
The Tribunal has merely recorded that it does not find any justifiable reason to impose the penalty upon the Director. While holding so, what has weighed upon the Tribunal is that no provision, section or rule of law under which the penalty has been imposed upon the Director, has been specified in the impugned order of the Joint Commissioner. These observations of the Tribunal overlook the fact that in the body of the Order in-Original, and more specifically in paragraph 23 thereof, the Adjudicating Authority has in fact, while considering the case against the respondent, held that the respondent is liable to penalty under Rule 26 of the Central Excise Rules, 2002. In the circumstances, merely because there is no mention of Rule 26 in the operative part of the order, it cannot be understood to mean that the adjudicating authority has not specified the provisions under which the penalty has been imposed upon the Director.
It is settled legal position that an order has to be read as a whole. When the order made by the Adjudicating Authority is read as a whole, it becomes apparent that the penalty has been imposed on the respondent under Rule 26 of the Rules.Against assessee.
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2010 (12) TMI 993 - GUJARAT HIGH COURT
Penalty - benefit of cum-duty price - Whether respondent eligible to avail the benefit of Notification No. 5/98 dated 2-6-1998 and also Modvat credit of inputs used for the goods simultaneously - allegations of wrongful availment of exemption under Notification No. 5/98 dated 2-6-1998 thus duty demanded under Section 11A of the Central Excise Act, 1944 - Tribunal allowed the claim - Held that:- No infirmity can be found in the approach adopted by the Tribunal inasmuch as if the assessee is not entitled to exemption under the notification in question, it would certainly be entitled to avail of Modvat credit in respect of the raw material used in the manufacture of the goods in question.
As regards the grant of benefit of cum-duty price, the Supreme Court in the case of Commissioner of Central Excise, Delhi v. Maruti Udyog Ltd., (2002 (2) TMI 101 - Supreme Court) has held that the wholesale price which is charged is deemed to be the value for the purpose of levy of excise duty, but the element of excise duty, sales tax or other taxes which is included in the wholesale price is to be excluded in arriving at the excisable value, order of the Tribunal being in consonance with the principle laid down in the aforesaid decision, it is not possible to state that the Tribunal has committed any legal error in directing that the sale price of the goods should be treated as cum-duty price for the purpose of valuation and determination of duty amount, no findings as regards suppression or mis-declaration. Tribunal was justified in setting aside the penalty, appeal is, accordingly, dismissed
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