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Central Excise - Case Laws
Showing 141 to 160 of 196 Records
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2014 (6) TMI 339 - CESTAT MUMBAI
Duty demand - Clandestine removal of goods - Held that:- It is a case where the allegation is clandestine removal of the goods on the basis of clearance register maintained by the Security Officer and the statement of Security Officer at the time of investigation. During the course of investigation, itself it has been explained to the departmental officers that there is no shortage of goods and no clandestine removal of the goods and the same were supported by various documents produced by the respondent before the investigating authority. It is also explained by the respondent that although the Security officer has maintained a register of clearance but it is a internal stock register of the goods. The goods were cleared finally from the factory gate on the basis of the gate pass and the clearance shown in gate pass are tallied with the invoices. As the respondent maintain two security checks the final security check deals with the clearance which are tallied with the actual clearance in the respondent stock register which tallies with each other and no evidence has been produced by the Revenue that these documents are not correct. Therefore, the allegation of clandestine removal is not sustainable. - Decided against Revenue.
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2014 (6) TMI 308 - GUJARAT HIGH COURT
Refund claim - Unjust enrichment - price inclusive of duty of excise - maintaining uniformity of price - duty paid under protest - Held that:- Admittedly, till January 2001, the assessee was paying excise duty at a lower rate. For the months of January and February 2001, the assessee was forced to clear the goods under heading 2404.90 at a higher rate. This was done under protest. The assessee also established that the sale price of the goods, despite this change in the duty rate that the assessee charged from the consumers, remained the same. This aspect has been gone into by the Tribunal at a considerable length. In the impugned judgment, the Tribunal compared the different invoices for the period between January-February 2001 and immediately before that. The Tribunal found that despite assessee paying considerably higher rate of excise duty and correspondingly higher duties of special excise and additional excise duties, the price inclusive of taxes remained the same.
This aspect the assessee established to the satisfaction of the Deputy Commissioner and the Commissioner also. Even these authorities did not dispute that despite increase in the Excise duty and corresponding increase in the additional duties, the goods were sold by the assessee to the consumers exactly at the same price as were being sold prior to January 2001. - considering additional material on record, the assessee, as held by the Tribunal, had succeeded in establishing that the burden of higher duty was not passed on to the consumers.
The Deputy Commissioner and Commissioner both simply brushed aside the evidence on record by holding that merely because the price structure has not changed, the burden on the assessee cannot be stated to have been discharged. When we find that in addition to such constant price structure there were other factors having a bearing on the issue, the said authorities could not have rejected the refund claim. The assessee having discharged the burden of establishing the necessary requirement, if the Departmental authorities desired to examine the issue from any other angle or required additional material to satisfy whether the uniformity in the price structure is attributable solely to the assessee absorbing the additional burden of duty or on some other fortuitous circumstances independent of the question of the assessee absorbing such burden, the authority could and ought to have made further inquiries with the assessee.
The decision of the Supreme Court in case of Allied Photographics India Ltd. (2004 (3) TMI 63 - SUPREME COURT OF INDIA) does have application to the case on hand, in view of other additional facts and circumstances, the Tribunal committed no error in allowing the assessee's appeal.Decided against Revenue.
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2014 (6) TMI 307 - RAJASTHAN HIGH COURT
Denial of refund claim - Bar of limitation - payment of duty under mistake of law - Held that:- Hon'ble Court has laid down that the suit cannot be instituted for refund of claim based on discovery of mistake of law and Section 72 of the Contract Act, 1932 and provisions of Section 17(1)(c) of the Limitation Act has no application in such a claim for refund.
Further while dealing with the pending litigations, the Hon'ble Court provided for time to make such application seeking refund, however, it further ruled that if proceedings have already been taken for refund and the parties have failed, they would not be entitled to the benefit of the said direction.
The suit filed by the plaintiff seeking refund of excise duty paid on blended yarn for a period 14.9.1966 to 15.3.1972 was not maintainable before the civil court and was clearly barred by limitation. As admittedly, the plaintiff had approached the Superintendent, Central Excise by way of application seeking refund and the Collector (Appeals) by way of appeal against the rejection of its application seeking refund and had failed - Following decision of Mafatlal Industries Ltd. v. Union of India [1996 (12) TMI 50 - SUPREME COURT OF INDIA] - Decided in favour of Revenue.
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2014 (6) TMI 306 - CESTAT NEW DELHI
Denial of Cenvat credit - Bar of limitation - Revenue entertained a view that the appellant has taken credit on the GP sheets, which were not capable of being used in the manufacture of their final product. As such, the Revenue further entertained a view that the appellant has sold the said procured GP sheets and has used the other procured HR/CR sheets in the manufacture of their final product. - Held that:- Impugned orders stands passed by the lower authorities in terms of the remand proceedings by the Hon’ble High Court vide their order dated 21.8.2008. Ongoing through the said order of the Hon’ble High Court, I find that the appeal does not stand disposed of by the Hon’ble High Court on the merits of the case, as is clear from the re-produced part of the order, it stand remitted to the lower authorities, preliminary on the ground that the entire material collected by the Revenue was not supplied to the assessee.
There is virtually no evidence produced by the Revenue inasmuch as no buyer of the GP sheets stands identified nor is there any documentary evidence to establish that the procured GP sheets were cleared by the appellant in the market. Further, the Revenue has also miserably failed to show as to from where the appellants have procured the HR/CR sheets. Admittedly, without the use of the raw materials, may it be GP sheets or HR/CR sheets, their final product cannot be manufactured. In the absence of any evidence produced by the Revenue, the burden of countering and rebutting the evidence does not get shifted to the assessee.
The number of search conducted on the google is not indicative of a process being commercially viable or not. On one hand the adjudicating authority has observed that de-galvanisation exists and on the other hand he is rejecting the appellants stand that there is no technical literature to show that de-galvanisation actually exists. He has also observed that the Show Cause Notice has referred to and relied upon circumstantial evidences to show that it is not possible to use GP sheets in the manufacture of tractor component.
The Revenue establishing a fact that in the normal course GP sheets are not used for manufacture of OE parts, cannot lead to inevitable conclusion that the appellants have not used the said GP sheets in the manufacture of their final product. This is specifically so as the Revenue has failed to produce any evidence on record to establish that the said GP sheets stand cleared by the appellant in the open market and also to establish that the appellants have procured the HR/CR sheets from any other source.
Extended period of limitation - Held that:- Admittedly the credit on the GP sheets was being availed by the appellant by reflecting the same in the statutory records. The requisite returns were being filed with the Revenue along with invoices, which indicated the description of the material as GP sheets. The said invoices were being regularly defaced by appellant’s jurisdictional Central Excise authorities, who never objected to the use of the GP sheets in the manufacture of OE parts. The RT-12 returns filed by the appellants were also being finally assessed. In such a scenario, I really fail to understand as to how any mis-statement or suppression etc. with an intent of mala fide can be attributed to the assessee so as to justifiably invoke the longer period of limitation - Bar of limitation - Decided in favour of assessee.
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2014 (6) TMI 305 - CESTAT MUMBAI
Waiver of pre deposit - Held that:- matter was listed earlier also on several occasions i.e. 16/05/2012, 21/06/2012, 09/08/2012 and today. On all the occasions, none appeared on behalf of the applicants. In view of these observations, we find that the applicants have nothing to say in support of their stay applications - Conditional stay granted.
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2014 (6) TMI 304 - CESTAT NEW DELHI
Area based exemption - Cash refund scheme - payment of education cess and S & H cess using BED Credit - Whether a manufacturer availing of exemption under Notification No. 56/2002 - CE - Held that:- manufacturer availing of notification 56/02-CE cannot utilize BED credit for payment of education cess and S & H cess as, it will amount to the indirect refund of education cess and S & H cess, which is not permissible. The payment of education cess and S&H cess through BED credit is in conflict with the scheme of this exemption which does not exempt the education cess and S&H cess and which is available only in respect of the duties mentioned in it subject to following of condition of para 1A of the notification.
Thus, while the Cenvat credit of the various duties/taxes mentioned in Rule 3(7) (b) can be used only for payment of the respective duties/taxes, there is no such restriction for utilization of credit of other duties i.e. BED credit, AED (GSI) credit, etc. In our view, in case of a manufacturer availing of exemption under Notification No.56/02-CE, while the restriction on utilization of Cenvat credit of duties/taxes as mentioned in Rule 3(7) (b) would be applicable, there would be one more additional restriction on utilization of credit of duties/taxes other than those mentioned in Rule 3(7) (b), i.e. credit of BED, AED (GSI) etc. and this restriction is that this credit cannot be used for payment of duties not exempted under this notification, as, as discussed above, if this is permitted, this would result in refund of duties like education cess, S & H cess, NCCD etc. which is not permitted under this notification, while it is well settled law that what is not permissible directly cannot be allowed indirectly.
Therefore, in order to ensure that an assessee availing of exemption under this notification does not end up availing this exemption in respect of education cess and S & H cess also, he cannot be allowed to use BED credit for payment of education cess and S & H cess, though this may be permitted under the provision of Rule 3(4) of the Cenvat Credit Rules, 2004. The provision of Rule 3(4) of the Cenvat Credit Rules are after all a facility and the extent to which the same are in conflict with the condition of Notification No.56/2002-CE, the same would not be applicable, as it is the condition of notification which would prevail.
It is pertinent to note that education cess and S & H cess have been levied vide Section 91 of Finance Act, and 136 of Finance Act, 2007 respectively and the object behind this levy is to generate funds to finance and provide infrastructure for promoting education in the country. If the argument of the respondents is accepted, then by adopting the practice of paying education cess and S & H cess from the Cenvat credit (BED) the assessee would indirectly get the refund of aforesaid cess which is not permissible under law as held by the Guwahati High Court in the matter of Dharampal & Satyapal (2011 (8) TMI 99 - GAUHATI HIGH COURT). - A unit availing of exemption under Notification No.56/2002 –CE cannot utilize BED credit for payment of education cess and S & H cess which are not exempted under this notification - Extra BED paid through PLA on account of diversion of BED credit for payment of education cess and S & H cess would not be refundable under Notification No. 56/2002 - CE - Decided in favour of Revenue.
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2014 (6) TMI 303 - CESTAT KOLKATA
Waiver of pre-deposit of duty - availment of cenvat credit on inputs without receiving the input materials or processed materials from the job workers - equal amount of penalty under Section 11AC - Held that:- that none of the job workers were found to have been engaged by the applicant. The applicant did not dispute this allegation of the Department. The number of workers were only five, is also not in dispute. The inspection carried out by the Chartered engineer was in the presence of the Director, Shri Ashok Kumar Kar. Is also not in dispute. During investigation, the Director admitted that he would not issue any challan for sending goods to job workers and the goods after finishing were directly sent to customer’s premises from the job worker as is clear from the reply to question Nos. 17 to 20 respectively.
The inspection of Chartered Engineer shows that the machines/machineries are old and rusted, there was very low consumption of electricity, workers as low as five in number and the diesel engine was not operating condition. Admittedly, the Director of the Company was present during inspection. Thus, prima-facie, it is revealed that the applicant indulged in irregular availment of cenvat credit on inputs without receiving the input materials or processed materials in their factory for manufa cture of finished goods and passed the same purported credit to various consignees in the guise of duty paid on their finished final products, when the goods were neither manufactured in their factory nor manufactured through job workers. The applicant did not follow the procedure prescribed under Notification 214/86– CE dated 25.3.1986. In these circumstance's , the applicant is not able to make out a prima– facie case for total waiver of pre–deposit. - stay granted partly.
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2014 (6) TMI 272 - CESTAT CHENNAI (LB)
Cenvat Credit - excise duty paid on excisable capital goods - Merger of two companies - availing credit by the second company after merger where capital assets were procured by the first company - Difference of opinion - Majority order - Held that:- On perusal of the lease agreement, it is seen that the Lessor (SISCOL) requested to the Lessee (JSWPL) to set up a power plant in the premises of the Lessor (SISCOL) to take care of the power generation of the Lessor to which Lessee has agreed. The lease of the immovable property is determined for a limited period conditionally on the happenings of some events. The tenure of the lease agreement depends upon the happenings of the future events. In the instant case, it is a conditional transfer of the property with an interest created on a transfer of the property and dependent upon the fulfillment of the condition. Thus, it is clearly evident that M/s.SISCOL had provided their land to M/s.JSWPL with a condition to set up a power plant and the electricity generated would be consumed in manufacturing activities of M/s.SISCOL.
An agreement should also be examined with actual state of affairs and its implementation from the records. In the present case, it may be seen from the documents and records that in 2004, M/s.SISCOL was declared as sick unit under SICA, 1985. CDR Cell report would show that SJG came forward for financing the sick unit M/s.SISCOL, as finance acts as an engine of growth. It appears from the Show Cause Notices that M/s.JSWPL, one of the companies of SJG, have expertise in constructing and operating Power Plants and M/s.JSW Steel Ltd. another company of SJG, is one of the purchasers of the final product of M/s.SISCOL. It is recorded in the CDR Cell report that there was proposal of merger of M/s.SISCOL with SJG, which is corroborated by Director's report dt. 26.4.2005 of JSWPL balance sheet. It is mentioned in "Unit III Debentures Trust Deed" dated 22.9.2005 of M/s.JSWPL that with a view to finance its 2 x 30 MW plant at SISCOL, the company has approached the Debenture holders. JSWPL declared to TNEB by letter dated 6.1.2005 that Captive Power Plant is installed inside the SISCOL premises to meet the present and future power requirements of SISCOL. Further, TNEB approved as SISCOL Captive Power Plant located in the company's premises.
Even prior to 31.8.2006, it was a Captive Power Plant of M/s.SISCOL as approved by TNEB under the Electricity Act. SISCOL was a sick unit. They entered into lease agreement with M/s.JSWPL, a relationship had already been developed prior to October 2005, as evident from CDR Cell report, JSWPL balance sheet etc., for financial accommodation to get loan from UTI Bank Ltd. for setting up C.P.P. and one of the considerations is that electricity would be supplied to M/s.SISCOL, which is an integral part of manufacturing activities of M/s.SISCOL - it is proper to allow cenvat credit to M/s.SISCOL from October 2005 on capital goods used in setting up Power Plant for generation of electricity, which was captively consumed within the factory of M/s.SISCOL for manufacturing of their final product - Decided in favour of assessee.
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2014 (6) TMI 271 - CESTAT AHMEDABAD
Cenvat / Modvat Credit - export of exempted cotton fabrics - Simultaneous availment of exemption under Notification No.29/2004-CE and 30/2004-CE both dated 09.07.2004 - Whether it is the choice of the assessee to select any notification and pay duty or avail exemption when two notifications, one granting absolute unconditional exemption to excisable goods and the other granting unconditional partial exemption to the said goods, are operative simultaneously and whether Section 5A(1A) of the Central Excise Act, 1944 would be applicable - Held that:- when two exemption notifications, one granting absolute unconditional exemption to excisable goods and the other granting unconditional partial exemption to the said goods, are operative simultaneously, it is the choice of the appellant to opt for that notification which is more beneficial to him. In the present facts and circumstances of these appeals, provisions of Section 5A(1A) of the Central Excise Act, 1944 are not applicable.
Provisions of sub-rule 57C(1) are satisfied as stipulated under Rule 57C(2) as well as Rule 57CC(6)1 and there was no need to comply with the provisions of rule 57CC1). Therefore, it is clear that an amount of 8% of the price of the goods exported is not required to be paid irrespective of whether the exported goods are exempted or otherwise - Even though Rule 6(1) of the Cenvat Credit Rules, 2004 provides that no Cenvat credit will be available in respect of the inputs used in the manufacture of exempted products, Rule 6(6)(v) of the Cenvat Credit Rules creates an exemption inter alia in respect of the excisable goods removed without payment of duty for export under bond in terms of Central Excise Rules, 2002. Considering the language of Rule 6(6)(v) of the Cenvat Credit Rules, 2004 the petitioners are entitled to avail Cenvat credit in respect of the inputs used in the manufacture of the final products being exported irrespective of the fact that the final products are otherwise exempt.
Provisions of Rule 6(1) of Cenvat Credit Rules are not attracted in the present facts and circumstances when 100% cotton fabrics attracting nil rate of duty are exported and CENVAT Credit was not deniable to the appellants - Decided in favour of assessee.
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2014 (6) TMI 270 - CESTAT MUMBAI
SSI Exemption - Job-work Exemption - benefit of notification 83/94 - manufacture of Sand Cores - Penalty u/s 11AC - Held that:- regarding demand based on statement, there is no retraction, it is based upon panchnama Even during hearing, nobody has disputed the fact that there was no factory of appellant No. 2/3. This case law is of no help to the appellants in the present case. The fifth case law quoted by ld. Advocate is CCE, Mumbai-V v. Panetrical Engineering Pvt. Ltd. reported in [2006 (3) TMI 170 - HIGH COURT OF JUDICATURE AT BOMBAY]. In this case Bombay High Court has held that whether unit can be treated as manufacturing unit/job worker without having any manufacturing activity and/or any machineries and/or any labourers is a question of fact and there is no question of law involved in this case. In our case undisputedly there is no factory and hence benefit of notification 83/94 cannot be extended to goods produced by appellant No. 1.
Appellant Nos. 2 & 3 had no factory and goods were manufactured from raw-material stage and sent to purchasers directly, claiming the goods to be job worked goods, we have no hesitation in our mind that proviso to Section 11A is invokable. Interest under Section 11AB and penalty under 11AC are also upheld for the same reasons - Decided against assessee.
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2014 (6) TMI 269 - CESTAT NEW DELHI
Area based exemption - State of Uttranchal - Non filing of declaration - exemption under Notification No. 50/2003-C.E. - Held that:- The Notification No. 50/2003-C.E. exempts the goods specified in the first and second Schedule to the Central Excise Tariff Act, 1985, other than those specified in Annexure-I to this notification and manufactured in the industrial areas specified in Annexure-II to the notification from the whole of the duty of excise leviable under Section 3(1) of Central Excise Act, 1944 and the whole of the Additional Duty of Excise leviable under Additional Duty of Excise (Goods of Special Importance) Act, 1957 and also under the Additional Duty of Excise (Textiles and Textile Articles) Act, 1978 - there is no dispute about the fact that till 13-3-2008 there was absolutely no intimation from the appellant company to the Central Excise authorities about their activity. Though they had started making clearances since May 2006 by availing full duty exemption under this notification, no returns were filed regarding the goods manufactured and cleared by availing of this exemption. Had at least such returns been filed, the department would have been in a position to know about their activity. In view of this, we are of prima facie view that the appellant’s plea that they had acted bona fide is difficult to accept. In any case, the question of limitation being a mixed question of fact and the law can be examined in depth only at the time of final disposal. - Conditional stay granted.
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2014 (6) TMI 268 - CESTAT NEW DELHI
Evasion of duty - Clandestine clearance of goods in the name of closed unit - manufacture of printing and writing paper as well as news print - Exemption Notification No. 6/2001-C.E., dated 1-3-2001 - Held that:- Both the units are situated in adjoining plots. It is also not in dispute that at the time of visit to the factory of M/s. Sikka and M/s. Shamli on 24-4-2003, it is only the M/s. Sikka which was found to be functioning and the unit of M/s. Shamli was found to be totally closed and from its appearance, it appeared that it was not functioning since long.
There is no dispute about the fact that M/s. Shamli did not have electricity connection since 3-7-1998. Though M/s. Shamli claim to be manufacturing paper by using the power using diesel generating sets, out of two DG sets each of 380 KVA, only one DG set was found to be functioned, in respect of this also no evidence of purchase of diesel by M/s. Shamli for running of the DG set. The communication dated 18-9-2001 of M/s. Shamli to Assistant Labour Commissioner shows that they had intimated the Assistant Labour Commissioner regarding closure of their unit in September, 2001. After this communication of September, 2001 there is no further communication, which shows that the unit remained closed since September, 2001. It is also seen that M/s. Shamli had deposited their contributions towards employees provident fund in the office of Provident Fund Commissioner only upto February, 2001.
It is difficult to believe their claim that their factory was still functioning by hiring contract labour. When no evidence of contract labour having been engaged by them have been produced. Even if the claim regarding supply of waste paper from M/s. Raghav Enterprises is accepted, it cannot be concluded that this waste paper was used by M/s. Shamli, when all other evidence indicate that the same was closed - obviously the waste paper, if any, supplied by M/s. Raghav Enterprises must have been used in the factory of M/s. Sikka. Taking into account the totality of the evidence against M/s. Shamli, we are of the view that the claim that M/s. Shamli was functioning during the period of dispute is difficult to believe, more so, in view of the fact that at the time of officer’s visit to the factory on 24-4-2003 from the condition of the plant it appeared that the factory is closed since long and also there was neither any power connection since July, 1998 no any evidence of purchase of diesel for running DG set or engaging contract labour.
Goods which are shown to have been cleared under the invoices of M/s. Shamli, had actually been manufactured by M/s. Sikka and this has been done by M/s. Sikka to wrongly avail of the exemption under Notification No. 6/2001-C.E. Since from the records it is seen that it is Shri Vinay Bansal who was running both the units and it is he who is the brain behind this duty evasion, the penalty has been rightly imposed on him - Decided against assessee.
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2014 (6) TMI 239 - CESTAT NEW DELHI
Levy of Clean Energy Cess - Assessee contends that alleged quantity of raw coal nor coal after its processing in the washery located within the mine, was not despatched to any destination beyond the coal mine, warranting levy and demand of Cess - whether the petitioner is required to pay Cess on the quantity of coal mined and fed to its washery located within the mine premises - Held that:- The dispute is in substance one involving interpretation of the provisions of Rules 2(g) and 4 of the 2010 Rules. Prima-facie, either view, the one adopted by Revenue and the other adopted by the petitioner, appear plausible. In the totality of circumstances and since the petitioner has already remitted a substantial portion of Cess assessed by the impugned order, i.e. ₹ 13,48,38,600/- against the demand of ₹ 18,72,09,053/-, we are inclined to grant waiver of pre-deposit and stay all further proceedings pursuant to the impugned adjudication order, on condition that the petitioner remits the balance assessed quantum of cess of ₹ 5,28,70,453/- and proportionate interest upto date, on the balance amount of ₹ 5,328,70,453/-, within four weeks - Stay denied.
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2014 (6) TMI 238 - CESTAT NEW DELHI
Denial of CENVAT Credit - Revenue denied the credit on the sole ground that there is no evidence of transportation of the goods from the premises of M/s Tata Motors to the appellant premises - Suo moto Credit - Revenue contends that refund claim should have been filed instead of availing Suo moto credit - Bar of limitation - Held that:- demand stands raised on the scrutiny of the appellant’s statutory documents itself, which shows that everything was recorded and there cannot be any mala fide. The appellants have also reflected the availment of the credit in their returns filed for the relevant period 2007-2008. Inasmuch as the re-entry was made in December 2007 and the notice stands issued on 8.3.2010 - Demand barred by limitation - Decided in favour of assessee.
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2014 (6) TMI 237 - CESTAT MUMBAI
Duty demand - Remission of duty - finished goods as well as raw materials destroyed in fire - demand on inputs imported / procured free of duty - interest - 100% EoU manufacturing bulk drugs and pharmaceutical products - Held that:- in terms of the bond executed, the appellant is liable to discharge Customs duty liability on the imported raw materials destroyed as such in the fire accident or the imported raw materials contained in the finished products destroyed as such.
Domestically procured goods were destroyed when they were being stored in the manufacturer's premises and therefore, the appellant cannot seek remission under Rule 21 of the Central Excise Rules, 2002 as the condition of permission stipulates the appellant would be liable to pay excise duty if the goods are not used for the intended purpose. Notification 1/95, under which the goods have been procured, stipulates that the goods have to be used in the manufacture of specific products which are required to be exported. Inasmuch as, in the present case, this condition is not satisfied, the appellant is liable to discharge duty on the raw materials destroyed during storage in the manufacturer's premises - once the goods are procured duty-free under exemption Notifications, the provisions of Section 23 of the Customs Act, will have no application - Following decision of Antarctica Ltd. [2009 (2) TMI 477 - CALCUTTA HIGH COURT ] and S.K. Pattanaik's case [1999 (12) TMI 60 - SUPREME COURT OF INDIA] - Decided against assessee.
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2014 (6) TMI 236 - CESTAT CHENNAI
Demand of differential interest per day - Delay in payment of duty - Held that:- The part of Rule 8(3) which includes expression ‘at the rate of two per cent, per month or rupees one thousand per day, whichever is higher’ is held to be invalid. Consequently, interest chargeable on delayed payment had to be only at the rate of 2% per month or for that matter 24% per annum as notified by the State Government in terms of the Section 11BC, which is between the permissible limits in ‘terms of Section 11AB. Consequently, the demand notices are quashed and interest on delayed payment has to be recomputed - Following decision of Lucid Colloids Ltd. Vs. Union of India [2005 (8) TMI 134 - HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR] - Decided against Revenue.
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2014 (6) TMI 235 - CESTAT CHENNAI
Duty demand - Non supply of proper documents - Held that:- appellants were not supplied with the unrelied upon documents, in that situation, the adjudicating authority is directed to supply the remaining documents which were seized and ‘not relied upon’ to the appellants, so that the appellants shall be able to reconcile their records and thereafter the adjudicating authority will do the fresh adjudication. In view of this observation, the matter is remanded to the adjudicating authority with the direction to supply the ‘non-relied upon documents’ to the appellants - Decided in favour of assessee.
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2014 (6) TMI 234 - CESTAT NEW DELHI
Confiscation of goods - Penalty - Incomplete RG-1 register - Tribunal decided in favour of assessee - Difference of opinion - Matter referred to larger bench with following questions of law:-
Whether in the facts of the case and the law applicable including the various decisions of judicial forums discussed, the seized goods are not liable to confiscation and the assessee company and the Director not liable to penalties as held by Member (Judicial)
OR
Whether in the facts of the case and the law applicable including the various decisions of judicial forums discussed, the seized goods are liable to confiscation and the assessee company and its Director are liable to penalties as held by Member (Technical).
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2014 (6) TMI 233 - TEXTILES COMMITTEE CESS APPELLATE TRIBUNAL
Demand of cess - Manufacture of cloth - Appellants contends that they cannot be solely made liable as they are only job worker and it is the supplier of cloth who is liable to discharge such liability - Held that:- Appellants themselves admit that they hold Central Excise Registration for processing of man-made fabrics being independent processors and that they undertake the job work of finishing and dyeing of man-made fabrics and accordingly, they are doing job work and collect charges for processing on job charge basis. It has also been admitted by the Appellants themselves in para 3 of their Memorandum of Appeal that grey fabrics is received by the Appellants from various traders considered as deemed manufacturer in terms of Central Excise Act and Rules made thereunder for processing on job charge basis. The processed fabrics is returned to the said deemed manufacturer on payment of duty on the declared value of grey fabrics after adding processing charges as per the settled law.
So far as the exemption under the proviso to sub-section (1) of Section 5A is concerned, the same is available to handloom and powerloom industries. The Appellants, who are manufacturing finished goods and not grey fabrics, i.e. the raw material, being not handloom or powerloom industries, cannot derive advantage of exemption on the basis of the raw material manufactured by other manufacturers. Thus, the Appellants are manufacturers of textiles in the aforestated facts and circumstances of the case and being so, they are subject to levy of cess in terms of the aforestated scheme of Law. - Decided against assessee.
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2014 (6) TMI 232 - CESTAT NEW DELHI
Duty demand - Clandestine removal of goods - Insufficient evidence - Held that:- impugned case is made on the basis of records taken from PEL and on records known to PEL. If the case made out by revenue is taken as correct there was dilution of the concentrate supplied by PEL to produce more goods than the quantity that could have been produced from concentrate supplied by PEL to the extent ranging from 1.65% to 2.78% ignoring the year 1989-90 when it was as high as 6.2%. This position was known to PEL and they chose to do nothing about it. This appears to be an unlikely scenario considering the fact that PEL was very conscious of the quality of their product. So it would appear that PEL did not think that any dilution of their concentrate beyond prescribed limit was done by the Appellant. If that be the case, the case made by Revenue fails.
The fact that the Appellant had paid his share of advertisement charges to PEL based on the sales figures in PEL’s books rather than based on clearance figures in the Appellant’s books is also not a sufficient evidence to prove clandestine removal because advertisement is a market development programme and the sales in the territory assigned to the Appellant in an year (even if a part of the sale was not made by him) is a factor from which Appellant stand to gain in subsequent years - So the case made out without investigating the source of the concentrate or the other inputs like pilfer proof caps to produce the quantity of final products held to be clandestinely manufactured is very weak and we are of the view that the demand confirmed cannot be sustained on the basis of evidence produced - Decided in favour of assessee.
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