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Central Excise - Case Laws
Showing 41 to 60 of 196 Records
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2014 (6) TMI 790
Waiver of pre deposit - Duty demand - Penalty - Held that:- Merely because the person liable to pay duty has discharged the duty liability, the proceedings against others will also get concluded especially when the proceedings are not under section 11A. Such an interpretation would amount to re-writing of the provisions of sub-section (2) of Section 11A. proceedings have been initiated against the appellant for imposition of penalty under the Central Excise Rules, 2002 for his involvement in aiding/abetting the main-appellant which resulted in evasion of duty. This position is also admitted by the appellant. Therefore, we are of the view that the appellant has not made out any case for complete waiver of the penalty imposed. - Conditional stay granted.
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2014 (6) TMI 789
Reversal of CENVAT credit - Availment of credit on inputs which were common inputs and consumed for the manufacturing of exempted final products - Rejection of valuation adopted by assessee - Held that:- Commissioner disposed of appeal which was not good way of dealing - if the Commissioner is not accepting the figures provided by the appellant then he should intimate the appellant the correct figure according to him is required to be considered. - Following decision of Orkay Glass Industries [2012 (2) TMI 438 - CESTAT NEW DELHI] and Rochem Separation Systems (I) Pvt. Limited [2012 (4) TMI 513 - CESTAT MUMBAI] - Matter remanded back - Decided in favour of assessee.
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2014 (6) TMI 788
Waiver of pre-deposit of duty - manufacture - applicants are putting Motorcycles and scooters to electrolyte and charge the battery of the two-wheelers - Demand is confirmed on the ground that this activity amounts to manufacture - Held that:- applicant being dealers only charging the battery by putting electrolyte. Prima facie this activity cannot be considered as manufacture of motorcycles. The pre-deposit of the remaining amount of dues are waived and recovery of the same is stayed during the pendency of the appeal - Stay granted.
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2014 (6) TMI 787
Denial of CENVAT Credit - Issue of debit notes - Non receipt of inputs - Held that:- Lower authorities have mainly relied on statement of Shri Vijay Sehgal made at the time of personal hearing before the adjudicating authority wherein he has stated that he is not aware of the goods having been received back after repairs. Though the appellants grievance is that no statement under Section 108 of the Customs Act was made by the appellants and it was only his submission made before the authorities at the time of personal hearing. In any case, the said statement is only to the effect that he is not aware of the receipt back of the inputs after repair. The said Shri Vijay Sehgal has nowhere stated that the goods were not received back by the appellants. Otherwise also Shri Vijay Sehgal was not in the appellants service during the relevant period and as such was not in a position to make any submission.
Apart from the above statement of Shri Vijay Sehgal which cannot be relied upon for the purpose enumerated above, there is no other evidence to show that the goods were not received back by the assessee. Admittedly, the appellants raised debit notes at the time of clearance of the inputs while sending them to the input manufacturer for rectification. The said debit notes were subsequently cancelled. In fact I find that demand stand raised against the appellant on the basis of debit note itself which stand raised by the appellant. If the said debit notes raised at the time of clearance of the inputs are accepted to be true reflection of the correct facts, cancellation of the same after the goods were received back by the appellant is also required to be accepted as the correct reflection of the correct position. There are no inquiries by the Revenue from the inputs manufacturer reflecting upon the fact that inputs sent to them for rectification were never sent back to the appellant. Further, I note that the appellants having entered the inputs in their RG 23A Part I was duty bound to show the consumption of the same. If the appellants have returned the goods to the inputs manufacturer after making entry of the same in RG 23A Part I, it is not possible for them to show utilization of the same in the manufacture of their final product, which stand cleared on payment of duty.
No justification for denial of credit to the appellant. However, learned advocate has fairly agreed that inputs involving credit of Rs. 3731/- were not received by them after rectification and the said debit notes raised by them was not cancelled. In view of the above, I confirm the demand of Rs. 3731.
Appellant is entitled to the said Cenvat credit, the proper course was to reverse the Cenvat credit at the time of clearance of inputs and to avail the same again at the time of receipt of rectified inputs. As such, the appellants are liable to pay the interest on the said Cenvat credit retained by them during the period of sending the inputs out and receiving the same back. The lower authorities would calculate the interest accordingly - Decided partly in favour of assessee.
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2014 (6) TMI 786
Condonation of delay - Appeal not filed in proper format - Held that:- appellant had filed the appeal before Commissioner (Appeals) on 29-7-2009, a copy of which is annexed to the present appeal at page No. 44 of the appeal paper book. Ongoing through the same, I find that it was received by the office of Commr. (Appeals) on 29-7-2009. The appellant had filed the appeal along with stay application, but not in the proper format, as prescribed for filing the appeal. However, it is not in dispute that the Department has received the said appeal memorandum and acknowledged the same on 29th July, 2009. No defect memo was issued to the appellant till May, 2010. Pursuant to the defect memo dated 31-5-2010, the applicant had filed the appeal in proper format on 17-6-2010. In these circumstances the date of filing of the initial appeal i.e. 29th July, 2009 be considered as the appeal for the purpose of Section 35A of CEA, 1944 and defects removed thereafter cannot be considered as the date of filing of the appeal before the office of Commissioner, Central Excise (Appeals). Thus, there is no delay in filing appeal before the ld. Commissioner (Appeals). Also, I find that the ld. Commr. (Appeals) has not decided the appeal on merit. In these circumstances, the case is remitted to the ld. Commr. (Appeals) for deciding the issue afresh - Decided in favour of assessee.
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2014 (6) TMI 785
Duty demand - Reversal of CENVAT Credit - Credit on destroyed goods - Goods destroyed in flood - Held that:- Goods lost in flood were semi-finished goods and duty on excisable goods is payable at the time of clearance only. Semi-finished goods cannot be cleared, therefore duty is not payable by the appellants. Following the decision of this Tribunal in Lakshmi Precision Tools Ltd. - [2005 (11) TMI 347 - CESTAT, CHENNAI], this Tribunal has categorically held that stock in progress damaged in fire accident, appellant not intending to claim remission of duty on any goods destroyed in fire accident, hence not filed any remission application nor reported the accident to the Central Excise department. In that circumstance, payment of duty is not sustainable. Further it was held that issue in the case of Elam Pharma Pvt. Ltd. (2010 (6) TMI 473 - CESTAT, AHMEDABAD) this Tribunal held that issue of reversal of credit arises only when the final product destroyed in fire. Admittedly, in this case the goods are in semi-finished condition lost in flood. Therefore, appellants are not required to reverse input credit also. - Decided in favour of assessee.
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2014 (6) TMI 760
Valuation of goods - Third party inspection - whether Pre-Delivery Inspection (PDI) charges recovered by the respondent for conducting test at the instance of the buyer is liable to be included in the assessable value or not - Held that:- circular No. 3/88-CX dated 16-2-88 issued under erstwhile Section 4 of the Act in respect of Pre-delivery Inspection charges has not stood the test of legal scrutiny as Tribunal’s judgment has been otherwise and consequently CBEC withdrew its subsequent circular No. 355/77/97-CX, dated 19-11-97 and 435/I/99-CX dated 12-1-99 vide Circular No. 681/72/2002-CX, dated 12-12-02 in the context of old Section 4 of CEA, 1944. The CBEC has issued a Circular dated 12-5-00 in which in Para 2.2 it has been clarified that the concept of new transaction value under Section 4 has same scope as that of old Section 4 of the Act and Valuation Rules. - third party s inspection charges initially paid by the appellants and subsequently reimbursed by the buyers is not includible in the assessable value of the goods. I, therefore, hold that duty demand of Rs. 25,125/- on inspection charges along with interest is not sustainable - Following decision of M/s. Choksi Tube Co. Ltd. v. CCE Ahmedabad [2002 (11) TMI 521 - CEGAT, NEW DELHI], M/s. Sunrise Structurals & Engg. P. Ltd. v. CCE, Nagpur [2002 (6) TMI 136 - CEGAT, MUMBAI], M/s. Southern Structurals Ltd. v. CCE, Chennai II [2002 (7) TMI 147 - CEGAT, CHENNAI] and CCE, Jaipur II v. M/s. A. Infrastructure Ltd. [2003 (5) TMI 161 - CESTAT, NEW DELHI] - Decided against Revenue.
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2014 (6) TMI 759
Validity of Tribunal's order for Recalling its earlier order as per the request of revenue - earlier appeal of the revenue was dismissed on technical ground - No proper authorization presented by Revenue - Held that:- appeal was dismissed by the Tribunal presumably on the ground that no proper authorization had been filed by the Commissioner in support of the appeal. The Tribunal having noticed such defect, erred in proceeding to dismiss the appeal on such ground by ignoring its powers available under Rule 11(2) ibid. In all fairness, therefore, the Tribunal should have afforded an opportunity to the appellant (Revenue) to rectify the defects by taking recourse to the powers available to it under Rule 11(2) of the Rules by extending the time. It was not disputed that the Revenue did rectify the defect though after dismissal of appeal. The Tribunal, therefore, rightly entertained the application and restored the appeal for its hearing on merits. Such order could be passed by the Tribunal in its rectification jurisdiction because the order contained an error apparent on its face, it having been passed contrary to Rule 11(2).
Substantial justice was done to parties because the Revenue’s appeal will now be heard on the merits. So far as writ petitioner is concerned, no prejudice is caused to him because no adverse order is passed against them. He will get full opportunity to oppose the Revenue’s appeal on merits - Following decision of Sangram Singh vs. Election Tribunal [1955 (3) TMI 31 - SUPREME COURT] - Decided against assessee.
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2014 (6) TMI 757
Denial of CENVAT Credit - Denial on the ground the goods on which credit taken was not raw material - Whether in view of the specific provisions under Rules, 173H and 173L of the Central Excise Rules, 1944, re-making, refining, re-conditioning, repairing or similar processes on defective goods returned to the manufacturer of the final products can be treated as an input for purpose of Rule 57A of the Central Excise Rules, 1944 - Held that:- By process of redrawing, reducing the thickness, softening, smoothing hardness etc., a new final product was being obtained and had been cleared on payment of duty. Such process has been treated as manufacturing by the party as well as by the respondent. If such process would not have been treated as manufacturing the final product would not have been taxed and would be exempted from payment of duty. It is not the case of Revenue that such process has not been treated as manufacturing and duty has not been assessed. - modvat credit claimed by the party can not be said to be erroneous. Under Rule 173L of the Rules, the party could claim the refund in case of goods returned but merely because that the refund of the duty paid on the finished goods, which have been returned being defective has not been claimed under Rule 173L of the Rules, the claim of the modvat credit under Rule 57-A of the Rules can not be denied.
Defective goods, may be final product, have been subjected to such process which amount to manufacturing within the definition of manufacturing under Section 2(f) of the Central Excise Act and as a result of such process a final product is obtained which is subjected to excise duty. The modvat credit under Rule 57-A of the Rules is admissible, if other conditions of Rule are fulfilled and claimed can not be denied on the ground that the assessee would have claimed refund of duty paid under Rule 173L of the Rules. - Decided against Revenue.
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2014 (6) TMI 756
Genuineness of the review order - whether the Review Order passed under Section 35(2) of the CEA,'44 on 22.01.2007, for filing appeal against Order-in-Original dated 30.12.2005 passed by the Joint Commissioner of Central Excise, Haldia, was barred by limitation or otherwise - Held that:- An unsigned order of the Board communicated by a junior official like the Superintendent cannot be held to be a valid review order passed, by the Board under the statute, specially when after availing so many chances and adjournments, the representative of the Revenue is not able to produce before us the original copy of the order signed by the Board Member nor the review file of the Board has been produced before us despite several directions.
The relevant provision under Section 35E(3) at the material time was that no order shall be made under sub-section (1) after the expiry of one year from the date of the decision or order of the adjudicating authority. Following decision of CCE, Trichy vs. Vel Pharma [2012 (7) TMI 31 - CESTAT, CHENNAI] - Decided against Revenue.
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2014 (6) TMI 755
Valuation of goods - whether the fixing charges, received by the appellant from their customers for fixing of Aluminium Doors, Windows and Curtain Frame falling under Chapter 76 are required to be added in the assessable value of the goods or not - Held that:- admittedly fixing charges have no connection with the manufacture of the final product and the same are the activities, which are subsequent to the clearance of the goods and at their customers premises. We find no justifiable reason to add such fixing charges in the assessable value of the goods - Decided in favour of assessee.
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2014 (6) TMI 754
Valuation of goods - Whether freight charges, which were collected separately as “to and fro” rate are required to be added in the assessable value of the explosives manufactured by the respondent - Held that:- Following decision of Majestic Auto Ltd. v. C.C.E. [2004 (1) TMI 138 - CESTAT, NEW DELHI] - Board’s Circular No. 643/34/2002-CX., dated 1-7-2002 cannot be held to be binding on the Tribunal - Decided against Revenue.
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2014 (6) TMI 753
Waiver of pre deposit - CENVAT Credit - Welding Electrodes have been used for repair and maintenance - Held that:- Appellant’s claim that the MS welding Electrodes were used to fill the holes in MS Ingots is without any supporting evidence. Even as per their statement SS Welding Electrodes are used for making groves in roles. Obviously, this is nothing but maintenance of the roles - contention of appellant at different stages of adjudication and appeal has not been consistent. In view of the said position, appellant have not been able to make out a strong prima facie case - Following decision of Shree Rayalaseema Hi – Strength Hypo Ltd. vs. Commr. Of Cus. & C. Ex., Triupati reported in [2012 (11) TMI 255 - ANDHRA PRADESH HIGH COURT] - stay granted partly.
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2014 (6) TMI 752
Waiver of pre deposit - Penalty on CHA for abetment - in-eligible availment of Cenvat credit - Penalty under Rule 26 of Central Excise Rules, 2002 - Held that:- Appellant, as a CHA, has filed Bills of Entry along with declaration as has been given by the importer and has discharged applicable Customs duty on the said consignment and cleared the consignment out of the Customs area and handed it over to the importer. After the goods were cleared from the Customs area, even if the appellant herein has directed the transporter to deliver the consignment to some other place other than the place, would not amount to his abetment of the issue of in-eligible availment of Cenvat credit by somebody else. - prima facie provisions of Rule 26 of Central Excise Rules, 2002, cannot be invoked against the appellant for imposition of penalty. - Stay granted.
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2014 (6) TMI 723
Condonation of delay - delay of 213 days - business problem and ill-health - Held that:- appellant has produced the Medical Certificate to prove the suffering of hypertension and cardiac problem for about seven months - The Tribunal had disbelieved the said version stating that there is no advise for taking bed rest. A person suffering from cardiac decease or problem must take rest and cannot function as the normal person - In such circumstances, the order of the Tribunal cannot be sustained. Having regard to the Medical Certificate produced by the appellant, which is not fully convincing to accept the version of the appellant, we are of the view that the appeal may be allowed on terms - Delay condoned conditionally.
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2014 (6) TMI 722
Condontaion of delay - Person attending legal matters remained absent from office - Held that:- Tribunal has termed the explanation offered by the Appellant as casual - The Tribunal, in our opinion, has taken a hyper technical view of the matter. It does not hold that the explanation given is false or that the conduct of the Appellants is such that they were utterly negligent, careless and acted malafide, then, there was no need to take such a view. In fact, liberal principles ought to have been applied and delay deserved to be condoned with a appropriate direction of payment of costs so as to compensate the Respondent and balance the rights and equities. Once the explanation given is found to be genuine and not false, then, holding that the delay does not deserve to be condoned because the Appeal was not filed immediately after resumption of duty by Mr. Sanjay Tope or after deposit of the demanded amount, was not in accordance with law. We are of the opinion that the view taken by the Tribunal cannot be sustained - Delay condoned with order of costs to be borne by assessee.
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2014 (6) TMI 721
Waiver of pre-deposit - Valuation - paper and paper boards - Job work - demand of duty on the price at which sheets were sold to the ultimate buyers - Held that:- If the appellant had cleared the paper from their factory in sheet form, they would have been required to discharge the duty liability at the price at which the paper sheets were sold. Merely because the paper was initially cleared to the job-workers for conversion from reels into sheets and thereafter supplied/sold to the buyers, why should the duty liability be discharged on a lower value? If such a view is taken, it will be possible to easily shift the penultimate process of manufacture to a job worker and evade excise duty on the value addition which has significant ramifications.
Further, manufacture includes any process incidental or ancillary to the completion of a manufactured product and cutting of paper from reels into sheets is a process incidental or ancillary to the completion of the paper sheet. As per Rule 10A of the Central Excise Valuation Rules, when goods are sent for job-work and the job-worked goods are sold from the job workers premises, duty liability has to be discharged on the sale price of the job-worked goods charged by the principal manufacturer. This change in the valuation Rules came with effect from 1st March 2007. Therefore, the stay orders pertaining to the previous period are not relevant or applicable as there is a change in the legal position. Therefore, the department's claim for discharge of duty on the price at which the goods were ultimately sold to the buyers had merits. - Conditional stay granted.
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2014 (6) TMI 720
Issue of subsequent show show cause notice when an earlier show cause notice on the same ground is pending - suppression of facts - extended period of limitation - Held that:- When the first SCN was issued all the relevant facts were in the knowledge of the authorities. Later on, while issuing the second and third show cause notices the same/similar facts could not be taken as suppression of facts on the part of the assessee as these facts were already in the knowledge of the authorities. - Decided in favor of assessee.
CENVAT Credit - Common inputs used in the manufacture of dutiable and exempted goods - Non-maintenance of separate records - reversal of credit with interest - benefit of retrospective amendment of Central Excise Rules 1944 and CENVAT Credit Rules 2001/2002/2004 for non compliance of order passed under the aforesaid provision of sections 70 to 73 of the Finance Act, 2010 - Held that:- If CENVAT Credit attributable to inputs used in the manufacture of exempted final products is reversed along with interest subsequent to removal of exempted final products, then the appellant cannot be said to have taken credit of inputs used in or in relation to the manufacture of exempted final products, and they need not pay an amount @ 8% or 10% of the sale price of exempted final products. - matter remanded back to adjudicating officer to verify the facts and reversal of credit - Decided in favor of assessee.
Jurisdiction of Tribunal to entertain an appeal - one time opportunity vide sub-sections (2) and (3) of the said Sections 70 to 73 of the Finance Act 2010 - Held that:- Evidently, the applicant has not complied with the provisions sub-section (3) of Sections 70 to 73 of the Finance Act, 2010, as the differential amount of ₹ 60,32,345/- decided by the appropriate authority was not paid within ten days of receipt of the said Order dated 28.12.2010. In these circumstances, the Order No. Section 68 to 72/ F.A./ COMMISSIONER/ 03/ 2010 dated 28.12.2010, passed by the Commissioner of Central Excise Ahmedabad-II, does not exist after the time specified in the relevant sections of Finance Act, 2010. It was a one time scheme. It has to be either accepted or rejected by the concerned parties. Further, since this Order has not been passed in exercise of powers conferred on the Commissioner under the Central Excise Act, 1944 or Rules made there under, this is not an appealable Order under the Central Excise Act, 1944. In this case the Commissioner as well as the applicant was bound to act in accordance with Sections 69 to73 of the Finance Act, 2010. For the same reasons, this Tribunal has no jurisdiction to entertain any appeal against the said Order.
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2014 (6) TMI 719
Cenvat credit - non production of copies of Invoices at the time of visit of officers of Anti Evasion Wing - Held that:- The appellant had enclosed copies of input invoices with their appeal memorandum and the Id. Advocate for the appellant claimed that all these documents were submitted to the adjudicating authority and the same are in the possession of the Department. In these circumstances, we are of the opinion that remanding the matter to the ld. Commissioner (Appeals) would not serve the purpose, but prolong the litigation. Hence, the matter is remanded to the Adjudicating Authority to consider the evidences/input invoices produced by the appellant and to record a categorical findings on the same. - Decided in favour of assessee.
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2014 (6) TMI 718
Waiver of pre-deposit - 100% EOU - inclusion of goods cleared under Notification No. 43/2001 under Rule 19 of Central Excise Rules, 2002 for the purpose of computation of DTA clearance - Held that:- clearance made by the applicant following procedure are laid down under benefit of Notification No. 43/2001-C.E. (N.T.) to the manufacturer-exporter who has obtained the permission from the Jurisdictional Commissionerate to procure the goods from the applicants duty free. In these circumstances, the applicants have made out a prima facie case in their favour. Accordingly, we waive the requirement of pre-deposit of the entire amount of duty, interest and penalty and stay recovery thereof during the pendency of the appeal - Stay granted.
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