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Central Excise - Case Laws
Showing 61 to 80 of 195 Records
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2010 (12) TMI 992 - CESTAT, KOLKATA
Penalty - denial of benefit of SSI exemption - as per CCE v. M.P.V. & Engg. Industries [2003 (3) TMI 107 - SUPREME COURT OF INDIA] the manufacturer is entitled for the benefit of the SSI exemption Notification from the date of application, in pursuance to which the registration has been granted - Held that:- Appellant produced a copy of the application which was filed in February, 1988, on which no date has been mentioned. Even second application was made sometime in February/March, 1988. The Certificate of Registration was granted on 31-3-88. Therefore, in absence of the date on which the application is submitted, it is difficult to say that the Appellant are entitled for the benefit of SSI exemption Notification from which date. As there is no evidence produced by appellant regarding date of second application, hence, the appellants are entitled for the benefit of Notification from the date of registration i.e. 31-3-88, Appellant failed to produce any evidence in support of their claim, penalty of Rs. 1.00 lakh has been imposed only on the ground that the Appellant had wrongly availed the benefit of the SSI exemption Notification. As held that the Appellant are entitled for the benefit of Notification with effect from 31-3-88, therefore no ground to interfere with the quantum of penalty imposed on the Appellant. Therefore, the Appeal is dismissed.
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2010 (12) TMI 989 - GUJARAT HIGH COURT
Extended period of limitation - suppression, misstatement or misdeclaration - clasification of yarn manufactured by assesse - Chapter sub-heading No. 54.02 or Chapter 56 - Held that:- In the light of the facts noted it is apparent that the assessee, initially, was classifying the goods under Chapter sub-heading No. 54.02. However, upon noticing that the Customs authorities were clearing such yarn under Chapter 56, the assessee, sought clarification in this regard was advised that the yarn manufactured by it merits classification under Chapter No. 56 of the Tariff Act. Accordingly, the assessee, after giving intimation to the department, started effecting clearances under Chapter 5606.06 of the Tariff Act. In the light of the aforesaid facts it cannot be said that there was any suppression, misstatement or misdeclaration on the part of the assessee. It is not in dispute that the Customs authorities were clearing such goods under Chapter 56 of the Tariff Act. The assessee, therefore, was entitled to entertain a bona fide belief that the product manufactured by it would fall under the said sub-heading.
It is not possible to state that the Tribunal has committed any legal error in holding that the extended period of limitation could not have been invoked. In favour of assessee.
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2010 (12) TMI 986 - CESTAT, NEW DELHI
Penalty - Waiver of pre-deposit - appellant paid the duty on the normal transaction value, that is transaction value of the goods to other independent buyers, while according to the Department, the duty should have been paid on the basis of 110% of the cost of production in terms of Rule 8 of the Central Excise Valuation Rules, 2000 - Held that:- Duty has been demanded by invoking proviso to Section 11A(1), but there does not appear to be any evidence indicating that the appellant had suppressed the relevant facts with intent to evade payment of duty - when the duty paid by the appellant in respect of the goods cleared from their factory was available as Cenvat credit to their factory located at Bahadurgarh, Haryana, there could not be any intention on the part of the appellant to evade the payment of duty. As the major part of duty demand is also hit by limitation, there is substance in the appellant’s plea for waiver from the requirement of pre-deposit of duty demand, interest and penalty. The stay petition is allowed.
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2010 (12) TMI 981 - CESTAT, MUMBAI
Outdoor catering service - disallowance of the availment of CENVAT credit of the service tax paid on the catering service wherein amount recovered from the employees against the subsidized food - Held that:- As decided in the case of CCE v. Ultratech Cement Ltd. [2010 (10) TMI 13 - BOMBAY HIGH COURT] the assessee is entitled to avail input service credit on outdoor catering service as the same are being used by them in their business of manufacturing but it was also held in the decision that if any amount recovered by the assessee from the employees providing subsidized food the assessee is not entitled to avail input service credit on this portion. Both the matters are remanded back to the original adjudicating authority to quantify the amount of reversal of input service credit.
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2010 (12) TMI 797 - GUJARAT HIGH COURT
Appeal under Section 35G - Classification - Section 35G of the Act lays down that an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal, not being an order relating, amongst other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment - In the circumstances, in the light of the decision of the apex court in the case of Navin Chemicals Mfg. & Trading Co. Ltd. v. Collector of Customs (1993 -TMI - 43621 - SUPREME COURT OF INDIA), the classification dispute having a direct nexus to the determination of the rate of duty, the present appeal which relates to a classification dispute would not be maintainable under Section 35G of the Act to the High Court - The Tribunal has also recorded that the assessee had submitted that the Supreme Court had also considered this issue in M/s. Virlon Textile Mills, (2007 -TMI - 1260 - SUPREME COURT OF INDIA) and that, there were several other decisions of the Tribunal subsequent to the decision of the Larger Bench on the same issue in favour of other 100% EOUs - Considering the fact that the issue was no longer res-integra and stood decided in favour of the assessee, the Tribunal allowed the appeal in favour of the assessee.
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2010 (12) TMI 729 - CESTAT, AHMEDABAD
SSI exemption - Brand name / trade name - Period of limitation - Book-Binding Cloth - In this case, there is no denial that Book-Binding Cloth was affixed with the monogram and name of the merchant-manufacturer or logo as the case may be, but only claim made is that the department has not shown the name of the brand/name of the manufacturer and to whom such brand name or logo belongs - in the absence of any specific evidence from the investigation to show that the appellants had deliberately mis-declared or suppressed the facts, invocation of extended period cannot be sustained - There is nothing to show that the appellants were asked to show that whether the padding undertaken by them was as per the definition in the notification or not - Demand sustained. Regarding classification - It was submitted by the learned advocate that delivery challan issued by the merchant manufacturers specified classification of the fabric under Chapter 52 and therefore the department cannot revise the classification in the hands of M/s. Vijay being a receiver and job worker without first reclassifying the goods at the end of the suppliers - in view of the fact that several processes padding, bleaching, dyeing etc in the case of fabrics amount to manufacture, each time a manufacturing process is completed, goods have to be classified afresh. Therefore, the contention of the learned advocate that the department cannot attempt to classify the goods afresh, has no force and has to be rejected Regarding penalty - They failed to declare what was received by them for undertaking processes like padding, calendaring etc was in fact leno/gauze fabrics and this led to availment of ineligible exemption - Held that: the total demand of duty is Rs. 20,51,369/- and penalty imposed is equal to the duty. In this case, penalty under Section 11AC has not been imposed and penalty has been imposed under Rule 173Q of Central Excise Rules, 1944 - Penalty is reduced to the extent of Rs. 5 lakhs - Appeal is disposed of
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2010 (12) TMI 728 - CESTAT, KOLKATA
Demand - Classification - Notification No. 67/95, dated 16-3-1995 - Time limitation - appellants have clearly revealed the fact relating to manufacture of dutiable wagons and wagon parts and exempted wagons and wagon parts - appellants have manufactured final products viz. wagon and wagon parts as well as wastes and scrap which emerged during the course of manufacture of such wagon and wagon parts - appellants have also cleared the final products namely wagon and wagon parts both on payment of duty and without payment of duty availing exemption - Since the condition of notification 67/95 before and after amendment by 31/2001 are not fulfilled, the appellants are not eligible for the benefit of notification 67/95 Regarding penalty - The emergence of wastes and scraps is inevitable during the manufacture of wagons whether cleared on payment of duty or cleared availing exemption - In the facts and circumstances of the case, we are not inclined to agree with the submission that the appellants have deliberately suppressed any information which they were legally required to submit - The emergence of wastes and scraps is inevitable during the manufacture of wagons whether cleared on payment of duty or cleared availing exemption - Decided against the Revenue
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2010 (12) TMI 727 - CESTAT, BANGALORE
Reversal of such Cenvat Credit - Revenue officers came to the conclusion that the appellants having not informed the Department regarding the receipt of these goods in the factory premises could not have availed the Cenvat Credit and cleared the same - It is also his submission that there is no time limit prescribed for availment of the credit in the current Cenvat Credit Rules and reversal of Cenvat Credit before utilization amounts to non-taking of credit - It is undisputed that the capital goods which were procured and purchased by the appellants were for captive co-generation power plant - If that be so, the credit availed by the appellants on the said co-generation power plant and subsequent removal of the same ‘as such’ cannot be faulted with Credit on the parts of the power plant for assembling of power plant for generation of electricity - Tribunal in the case of Grasim Industries Ltd. has clearly laid down that Cenvat Credit cannot be denied on the items which were used for assembling captive power generation plant and the power plant satisfied the criteria for the definition of ‘capital goods’ - When the law is settled on the issue, there is no justification to deny the credit on the ground that it is availed after a long time - Appeal is allowed
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2010 (12) TMI 726 - CESTAT, MUMBAI
Confiscation - 100% EOU - Rule 25 and 26 of the Central Excise Rules, 2002 - The only allegation against the appellants is that they are not paying duty at the time of clearance as per Rule 17 of the Central Excise Rules, 2002 - When it is not alleged that there is any intention of the appellants to evade payment of duty, in that event, the allegation of mens rea cannot be alleged against the appellants - Decided in favor of the assessee
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2010 (12) TMI 715 - CESTAT, MUMBAI
SSI Exemption - whether the assessee should be required to include the clearances made to merchant-exporters also in the computation of aggregate value of clearances of specified goods for home consumption - Board’s Circular No. 648/39/2002 - Held that:- the assessee in the present has established that the corrugated boxes were not cleared for home consumption but cleared for export in terms of Rule 19(1) of the Central Excise Rules and, therefore, such clearances are not liable to be reckoned as part of aggregate clearances for home consumption for the purposes of SSI notification for any of the financial years comprised for the period of dispute in this case.
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2010 (12) TMI 673 - CESTAT, BANGALORE
Demand - clandestine removal - Commissioner found that the daily production reports(DPR) gave complete details of the jute converted into yarn and would not miss information relating to reprocessing and rewinding - all the clearances upto 11-5-01 in respect of which the Commissioner has confirmed the demand fall under two broad categories, i.e. finished goods allowed to be sold in India by the Development Commissioner and not so allowed - the impugned clearances were held to be without permission by the concerned authorities - Commissioner dropped the proposal also for the reason that the show-cause notice had not alleged that 14 lbs recorded in the RG-1 had represented production of jute yarn of 20 lbs - Held that: appeal is not based on proper and reliable evidence - Appeal is allowed by way of remand
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2010 (12) TMI 668 - CESTAT, BANGALORE
EPCG scheme - Confiscation - Whether natural justice was denied to the appellants by the adjudicating authority - In the present case, the learned counsel submitted that the appellants could not reply to the show-cause notice as they were not allowed to cross-examine the witnesses - Once the case is before the adjudicating authority, the noticee is at liberty to adduce evidence to support his own defence and/or to disprove the department’s allegations - it can be held with no iota of doubt that the adjudicating authority duly observed the principles of natural justice whether the goods were liable to confiscation under Section 111(d) of the Customs Act - The certificate of the Chartered Engineer, which was produced by the importer along with their Bills of Entry, was itself dubbed as invalid by the Chartered Engineer himself vide statement dated 26-3-1997 of Shri S.M. Bhola - The relevant EXIM Policy (1992-97) required the minimum residual life of second-hand machines to be ten years for zero duty imports - Decided against the assessee whether the machines under import were liable to be confiscated in terms of Section 111(m) of the Act - for the applicability of Section 111(m), there can be no differentiation between the goods in respect of which Bills of Entry were filed and other goods under transhipment for which no Bills of Entry were filed - It is not in dispute that the goods under import were not of the same specifications as those of the goods mentioned in the purchase order - Decided against the assessee whether some of the items imported by KSL along with the machines without mentioning the same in the import documents are liable to confiscation under clause (l) of Section 111 of the Act - The redemption fines determined by the Commissioner in lieu of confiscation of the goods are apparently proportionate to the lower CIF values estimated in the relevant punchnamas and not to the declared higher CIF values - Held that: value could not have been revised by the Commissioner is agreed to by me since there was no proposal to revise the value in the show-cause notice by due rejection of transaction value and proposal to reduce it under a specific rule with supporting evidence - In the absence of specific proposal and conclusions, I agree that value as declared has to be accepted and not because there is no evidence - Appeal is dismissed
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2010 (12) TMI 594 - GUJARAT HIGH COURT
Rule 18 of the Rules pertains to rebate of duty - Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 - During the period from 15-8-2004 to 8-9-2004, the petitioner-Company had exported cold roll stainless steel circles on four different occasions and had made payment of Central Excise duty on the said goods amounting to Rs. 6,33,818/- for which on 18-8-2006, the petitioner Company filed rebate claims of duty paid on goods exported - the only circumstance under which a claimant would be entitled to prefer a claim beyond the statutorily prescribed period of limitation would be where the lapse as to non-availability of requisite document is on account of Central Excise Department or Customs Department - The petitioner remained totally passive and it was not till the documents were returned by the authorities concerned after the matter was settled before the Settlement Commission that the petitioner filed the rebate claim - The petition, accordingly, stands dismissed with no order as to costs
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2010 (12) TMI 593 - GUJARAT HIGH COURT
Cenvat credit - Limitation - Whether the CESTAT was right in rejecting the appeal on merits by denying the credit on LDO used as fuel for generation of steam part of which was cleared to the sister concern for use in the manufacture of dutiable final products - Hence, identical issue had been considered by the Tribunal in the case of[2007 -TMI - 1589 - SUPREME COURT OF INDIA],had denied the benefit - However, the Tribunal had held that the demand raised after the normal period of 6 months was barred by limitation - Tribunal has decided the appeal of the assessee only on the question of invocation of the larger period of limitation - Once the appellant has not contested the matter on merits before the Tribunal, needless to state that it is not open for the appellant to raise the same before this Court. - Decided against the assessee.
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2010 (12) TMI 588 - GUJARAT HIGH COURT
Penalty u/s 11AC - Evasion of duty - Rule 25 of the Central Excise Rule, 2002 - it is apparent that under the said rule penalty not exceeding the duty on the excisable goods in respect of which the contravention of the nature specified thereunder has been committed or rupees two thousand, which ever is greater can be imposed - Merely because the Tribunal has fallen back upon the provisions of Section 11AC of the Act for the purpose of reducing the penalty to 25% of the amount imposed by the Adjudicating Authority, the same does not give rise to any question of law so as to warrant interference - Appeal is dismissed
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2010 (12) TMI 584 - CESTAT, NEW DELHI
Waiver of pre-deposit - Reversal of cenvat credit - Rule 3(5) of the Cenvat Credit Rules, 2004 - whether used capital goods could have been removed as such in June and July 2007 only upon reversal of cenvat credit that was availed by the appellants on purchase of the said capital goods - when the capital goods were removed as such from the factory by the appellants, they were required to pay an amount equal to the credit availed by them in respect of such capital goods. Once it is apparent that the appellants had not paid such amount, there was clear violation of the Rule in force at the relevant time Mere contention that on account of frequent changes in the provision of law, which itself is devoid of substance, cannot be a justification to avoid the penal liability resulting from failure to discharge the revenue liability by the assessee - the appeals and applications fail and are accordingly dismissed
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2010 (12) TMI 583 - CESTAT, KOLKATA
Refund claim - Area based exemption - Adjustment of excess re-fund - Notification No. 33/99 dated 8-7-1999 was amended by Notification No. 61/2002 dated 23-12-2002 which restricting the refund - There is no dispute before us that an amount of Rs. 35, 31,810/- was paid to the Appellant in excess during the relevant period - The claim of the Appellant is that they have adjusted the excess payment voluntarily in their refund claim for January, 2003 - There is no request for any adjustment of amount paid to them in excess during the period September to December, 2002 - The entire amount as claimed by them stands sanctioned -Merely because certain amounts were lying in the CENVAT Account which could have been used by them otherwise for paying the duty amount, it cannot be presumed that an excess amount has been sanctioned as refund and adjusted - The adjustments sought for by the Appellants will amount to re-casting the refund claim filed by the Appellants as if it was for a higher amount and showing as if part of the amount stand adjusted - This type of adjustment of is neither desirable nor permissible - Decided against the assessee.
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2010 (12) TMI 566 - CESTAT, CHENNAI
Cenvat credit on capital goods - Respondents contended that the capital goods have been used only in the manufacture of the final products are that same was installed in the additional premises belonging to the respondents - And the additional premises were also earlier registered by the respondents, but the registration was cancelled as the final goods were not produced in the additional premises, only shot blasting was carried out in the additional premises using the capital goods - Decided in favour of assessee.
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2010 (12) TMI 565 - CESTAT, NEW DELHI
Loophole in any Circular - it is not only the duty of the DR to place before the Tribunal the case of the department, but also it is the obligation of the DR to assist the Tribunal to arrive at correct finding on the issue in dispute - Bearing same in mind, if DR notices any loophole in any Circular or any mistake in any Circular nothing can prevent such DR from bringing the same to the notice of the Tribunal rather it is his duty to do so - Being so, question of seeking of permission from any authority on that count does not arise.
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2010 (12) TMI 562 - CESTAT, BANGALORE
Waiver of pre-deposit - Benefit of Notification No. 3/2004-C.E., dated 8-1-2004.- Department contended that the pipes supplied were not eligible for the benefit of the Notification in view of the fact that pipes were not used for transportation of water from water treatment plant to the storage plant, as provided in the Notification - Held that:- the purpose of the water supply facility and the pumping house and system, etc., is to supply water for agricultural house and the fact is that the explanation only enlarges the definition of water supply plant to include desalination, demineralization or purification of water plant and does not restrict it to only desalination, demineralization or purification of water plant,find that appellant has been able to make out a prima facie case in their favour - Decided in favour of assessee.
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