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Central Excise - Case Laws
Showing 41 to 60 of 177 Records
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2012 (6) TMI 741 - CESTAT BANGALORE
Clearance of excisable goods to the DTA on payment of duty - Non maintenance of seperate accounts - Held that:- very basis of the impugned demand is unfounded inasmuch as, in the case of Sujana Metal Products Ltd. vs. CCE, Hyderabad [2011 (9) TMI 724 - CESTAT, BANGALORE], this Tribunal rejected a similar plea of the Department and held that all supplies of excisable goods by a DTA unit to SEZ developer should be considered as exports and were not to be treated as exempted goods and consequently the provisions of Rule 6(3) of the CENVAT Credit Rules, 2004 were not applicable to such goods - Decided against Revenue.
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2012 (6) TMI 740 - CESTAT CHENNAI
CENVAT Credit - Credit in respect of structural items used for fabrication of supporting structures - Held that:- duty credit in respect of structural supports cannot be allowed - Following decision of Vandana Global ltd. Vs CCE Raipur - [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] and the Hon’ble Supreme Court’s decision in the case of Saraswati Sugar Mills Vs CCE Delhi - [2011 (8) TMI 4 - SUPREME COURT OF INDIA] - Decided in favour of Revenue.
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2012 (6) TMI 739 - CESTAT MUMBAI
Valuation of goods - Whether the transportation charges recovered separately under debit notes and not reflected in the invoices are required to be added in the assessable value - Held that:- appellants were clearing the goods at factory gate. However, in some cases where the customers are at Mumbai, Hyderabad, Nagpur etc., the goods were transported at the request of the buyer at the railway station at Kolhapur for further transportation and such charges are separately recovered from the customers - Decided against Revenue.
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2012 (6) TMI 738 - CESTAT BANGALORE
Rectification of mistake - Held that:- The assessee’s appeal and the Department’s appeal were both directed against the same order of the Commissioner and both should have been listed for joint hearing and disposal. The assessee’s appeal, though filed later, was listed before the Bench for final hearing while the Department’s appeal, filed earlier, was still pending. Neither side mentioned anything about the pending appeal of the Department when the Bench passed Final Order dated 3-12-2009 in the assessee’s appeal. We are constrained to believe that both sides were aware of the factum of pendency of the Department’s appeal when the Final order was passed by this Bench on 3-12-2009. Be that as it may, the crucial finding recorded by the Bench in Final Order dated 3-12-2009, on the basis of which the assessee got relief, is erroneous and the injustice arising out of such finding has got to be remedied. There is a more or less similar situation in relation to Miscellaneous Order dated 19-7-2010 also - Decided against Revenue.
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2012 (6) TMI 737 - CESTAT AHMEDABAD
waiver of pre-deposit - assessee has not returned the goods which were received from 100% EOU, without following the proper procedure of consuming them and returned the same after a period of three years - Held that:- Appellant is 100% EOU has procured the raw materials for consumption in manufacturing of goods in his factory premises. It is also undisputed that the same goods have been returned back to the original manufacturer being of sub-standard quality and such returns have taken place under proper invoices and AR 3A, which have been acknowledged by the recipient and original manufacturer of the said goods. If that be so, we find that the goods which were received by the appellant without payment of duty from the manufacturer under CT-3, having accounted for and when there is no diversion of the said goods in order to demand the duty, prima facie, we find that the appellant’s case is covered by various provisions of the Central Excise Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001 - Stay granted.
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2012 (6) TMI 736 - CESTAT NEW DELHI
Confiscation of goods under Rule 25 of the Central Excise Rules - Interception of trucks - Non production of proper documents - Held that:- investigating officers have not been able to identify the factory from which the goods were cleared without payment of duty. The appellants before me are neither a transporter, registered dealer or owner of a warehouse. Therefore, the goods cannot be confiscated in the hands of the appellants as per the provisions of Rule 25 of Central Excise Rules. If the goods cannot be confiscated under Rule 25, penalties imposed under Rule 26 are also not sustainable. So is the confiscation of the vehicles which were seized for the reason that they were carrying non-duty paid goods is also not maintainable. So the question of redemption fine for the goods or the vehicle does not arise - Decided in favour of assessee.
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2012 (6) TMI 735 - CESTAT BANGALORE
MRP Based valuation - Method of calculation - Packs containing about 100 "Eclairs" brand chocolates each weighing 5.5 gms cleared adopting cost construction method - Whether the goods cleared by the appellant during the period of dispute should be assessed to duty under Section 4 or under Section 4A of the Central Excise Act - Held that:- Following decision of assessee's own previous case [2008 (2) TMI 103 - CSTAT CHENNAI], CCE, Rajkot vs. Makson Confectionery Pvt. Ltd. [2010 (9) TMI 10 - SUPREME COURT] and Swan Sweets Ltd. vs. Commissioner [2006 (1) TMI 269 - CESTAT, MUMBAI] - Decided in favour of assessee.
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2012 (6) TMI 734 - CESTAT NEW DELHI
Excise duty evasion - Whether penalty should be imposed on the Director of the company under provisions of Section 11AC and Rule 25 or 26 of Central Excise Rules, 2002 - Revenue is of the view that since the appellant who was the Director of the assessee-company was involved in the clandestine activities of the said assessee - Held that:- as per the provisions of the first proviso to Section 11A(2) when a case is against an assessee is settled under Section 11A(1A), no further proceedings is maintainable against any other person to whom notice is issued under Section 11A(1). I find that the provisions in the said proviso is very clear and decisions relied upon by Revenue are not with reference to a situation where payments as envisaged under the provisions of Section 11A(1A) was made - Decided against Revenue.
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2012 (6) TMI 733 - CESTAT CHENNAI
Denial of Exemption Notification Nos. 3/2001 and 6/2002 - Necessary KVIC certificate was produced subsequent to the date of clearance - Held that:- Tribunal has earlier taken a lenient view in such cases. Accordingly, we are of the view that the delay in submission of the KVIC certificate is condonable and hence the impugned orders passed by both the authorities below require no interference - Decided against Revenue.
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2012 (6) TMI 732 - CESTAT CHENNAI
Exemption under Notification No. 10/97-C.E., dated 1-3-1997 - Held that:- since the required certificates from the competent authorities in the specified department have been produced for grant of duty exemption, the same should not be denied - Decided against Revenue.
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2012 (6) TMI 731 - CESTAT NEW DELHI
Duty demand - Whether blending of ordinary petrol or HSD with MFA and selling the blended product under brand names "Power" and "Turbo Jet" at a higher price amounts to manufacture, and whether branded petrol and branded HSD would be liable to duty once again under Sub-heading 2710.11 and 2710.19 respectively - Held that:- appellants bring duty paid "Petrol" and "HSD" to their depot where part of such "Petrol" and "HSD" is blended with Multifunction Additives and said products are sold at higher price under the brand names "Power / Turbo Jet" respectively - blending of "Petrol" and "HSD" with Multifunction Additives does not bring about a new distinct product and such process cannot be treated as manufacture - Following decision of HINDUSTAN PETROLEUM CORPN. LTD. Versus COMMR. OF C. EX, DELHI & ROHTAK [2008 (9) TMI 154 - CESTAT, NEW DELHI] - Decided in favour of assessee.
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2012 (6) TMI 730 - CESTAT NEW DELHI
Penalty under Rule 25 - Held that:- it is evident that under this rule penalty can be imposed only on producer, manufacturer, registered person of a warehouse, or registered dealer. It is not the case of the prosecution that the appellants herein are producer, manufacturer, registered person of a warehouse or registered dealer. Therefore, in our considered view Rule 25 of Central Excise Rules, 2002 is not attracted in this case. Otherwise also the issue is covered by the order of Coordinate Bench of this Tribunal in the case of M/s. Dhanlaxmi Garments v. CCE, Surat-I, reported in [2008 (4) TMI 296 - CESTAT AHMEDABAD]. As such, order of the Commissioner imposing penalty on the appellants cannot sustain - Decided in favour of assessee.
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2012 (6) TMI 729 - CESTAT NEW DELHI
Duty demand - Invocation of extended period of limitation - Whether or not the appellant has manufactured and cleared the disputed caps and bags under the brand name Reebok and Nike to M/s. Sierra Industrial Enterprises (P) Ltd. and M/s. Reebok India Ltd - Held that:- If the appellant was a trader he could easily have produced in evidence the person from whom he procured these bags and caps. The appellant, however, has failed to produce any evidence to prove his claim that he was a trader only. From the record it is evident that the appellant was evasive and non-cooperative during the adjudication proceedings. He did even produce any evidence to substantiate his claim before the appellate authority. Not only this the appellant did not even produce his account books as also the supply contract with M/s. Sierra Industrial Enterprises (P) Ltd. and M/s. Reebok India Ltd. which could has thrown light on the issue and instead took a plea that his account books have been lost regarding which a FIR was lodged with the police.
From this it is evident, that FIR was lodged on an afterthought to justify, non-production of account books which would have brought true facts to light. Thus much importance cannot be attached to the FIR. From the above it is evident that the appellant has failed to adduce evidence, within his knowledge and control, to support his claim. Since, the appellant failed to lead the best evidence, in our considered view the Adjudicating Authority as also the Appellate Authority were right in drawing an adverse inference that he was the manufacturer of the caps and bags. Thus, the impugned order cannot be faulted - appellant did not get himself registered with the excise department as a manufacturer, therefore, the department could not have any way to know about the removal of excisable goods by the appellant without the payment of excise duty. Thus, in our view this is a clear case of deliberate concealment and suppression of fact on the part of the appellant as such the department was well within its rights to invoke extended period of limitation - Decided against assessee.
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2012 (6) TMI 728 - CESTAT, NEW DELHI
Waiver of the condition of pre-deposit of duty demand - Penalty under Rule 25 - Held that:- It is undisputed that the appellant paid the excise duty within the grace period of 30 days as provided under the rules. The amount paid by the appellant, however, was slightly less in various instances and that shortfall was made good with interest in November 2009. From this, prima facie, it can be inferred that there was no intention on the part of the appellant to evade the payment of excise duty and the defaults occurred due to computation error. This inference gets strengthen from the fact that the amount of shortfall in the payment of excise duty is negligible as compared to the amount of duty paid for respective months. Undisputedly, the shortfall was made good by the appellant after it was brought to his notice - As compared to the amount of default, the amount of duty confirmed against the appellant is too huge, therefore, in our view calling upon the appellant to make pre-deposit of duty demand, interest and penalty would obviously cause him undue financial hardship - Stay granted.
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2012 (6) TMI 727 - CESTAT, NEW DELHI
Duty demand - CENVAT Credit - Interest and penalty - Held that:- Even though during the period of dispute, there was no provision for recovery of the amount payable under Rule 6(3) of Cenvat Credit Rules, 2001/2002/Rule 57AD (2) of Central Excise Rules, 1944 from an assessee who had not paid the same, since such a provision for recovery was introduced with retrospective effect only by Section 82 of the Finance Act, 2005, while the amount not paid can be recovered along with interest by invoking the recovery provision - while the demand for the amount demanded under Rule 6(3) of Cenvat Credit Rules, 2001/2002/Rule 57AD(2) of Central Excise Rules, 1944 along with interest is upheld, the penalty of Rs. 59,73,020/- imposed on the appellant is set aside. As regard, the penalty of Rs. 1348/- for clearance of ODS without payment of duty, the same is not disputed and is upheld - Following decision of CCE and ST LTU, Bangalore v. Bharat Electronics Ltd. [2011 (3) TMI 512 - KARNATAKA HIGH COURT] and CCE, Allahabad v. JHV Sugar Corporation Ltd. [2009 (10) TMI 798 - CESTAT NEW DELHI] - Decided partly in favour of assessee.
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2012 (6) TMI 726 - CESTAT MUMBAI
CENVAT Credit - GTA Service - Suo moto availment - Held that:- There is no dispute whatsoever on the amount of credit taken. In the instant case, the credit has been taken in pursuance to and in accordance with the order passed by the lower appellate authority vide order dated 12/11/2009. The said order has been upheld by this Tribunal also in the order dated 02/08/2011. That being the position, the appellant has rightly taken the credit. It is not a suo motu action on the part of the appellant but an action as directed by the lower appellate authority, which was reconfirmed by this Tribunal. Therefore, there is absolutely nothing wrong on the part of the appellant in availing the Cenvat credit - Decided in favour of assessee.
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2012 (6) TMI 725 - CESTAT MUMBAI
Stay application - Interest liability - Goods destroyed in fire - Held that:- this order has been passed confirming interest on a duty demand which itself is pending decision at the lower appellate authority's level although the appellate authority considering the said appeal is different. Unless a final decision taken on the liability to pay duty, interest liability on duty cannot be confirmed. Therefore, in the interest of justice it is appropriate to grant unconditional waiver from the pre-deposit of interest adjudged against the appellant - Stay granted.
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2012 (6) TMI 724 - CESTAT CHENNAI
Demand of duty on account of process of dyeing of cotton fabrics - Penalty - Held that:- The appellant may be given an opportunity of concessional penalty subject to payment of duty and interest within 30 days of service of intimation of duty and interest payable by the appellant - Matter remanded back - Decided partly in favour of assessee.
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2012 (6) TMI 697 - BOMBAY HIGH COURT
Whether Tribunal was justified in directing the assessee to pay 25% of the penalty levied u/s 11AC within 30 days from the date of communication of the order passed by the Tribunal - non-payment of penalty at 25% of the duty determined u/s 11A(2) within 30 days from the date of communication of the order of the Central Excise Officer determining duty payable u/s 11A(2) - Held that:- Instead of paying 25% of the penalty within the stipulated time, the assessee has chosen to file an appeal against imposition of penalty u/s 11AC and the Tribunal has permitted the assessee to pay 25% penalty beyond the time prescribed under the proviso to Section 11AC which is not permissible in law.
When the legislature specifically fixes the time limit within which the duty with interest and penalty at 25% is to be paid for availing the incentive, it would neither be open to the appellate authority nor any other authority to permit the assessee to pay 25% penalty at any time other than the time prescribed under Section 11AC. The incentive in Section 11AC is intended to encourage payment of tax due to the revenue at the earliest without resorting to unwarranted litigation and it is not an incentive for violating the provisions of law. Therefore, benefit of paying lesser penalty cannot be extended to the assessee - Decided in favor of Revenue.
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2012 (6) TMI 696 - CESTAT, MUMBAI
Denial of CENVAT credit - steel items used in the manufacture of immovable property - application for waiver of pre-deposit - Held that:- As per Rule 2(k) of the CENVAT Credit Rules, 2004, to qualify for capital goods the item have to be goods first. “Goods” by definition are items which can come to the market for being bought and sold and they have to be movable in nature.
Chimneys of power plants and storage silos are immovable properties and are not goods. Therefore, though storage tanks have been specified under capital goods, only such storage tanks which are ‘goods' can fall within the definition of capital goods. If the storage tanks are immovable property, they cannot come under the definition of capital goods - ‘capital assets' and ‘capital goods' cannot be held to be synonymous, thus, foundations and supporting structures imbedded to earth may be categorized as capital assets but would not qualify to be capital goods in terms of the definition contained in the Cenvat Credit Rules - the appellant has not made out any prima facie case for complete waiver of pre-deposit.
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