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Central Excise - Case Laws

Showing 121 to 140 of 225 Records

• 2015 (3) TMI 628 - SUPREME COURT
  

  Non payment of excise duty - Invocation of extended period of limitation - Suppression of facts - Held that:- The Tribunal has noted that there was in fact a disclosure of the aforesaid fact in CT(3) certificate which was submitted by the respondent to the Department. It is noted that no clearance could have taken place without the knowledge of the officer as to the ultimate destination of the goods and the fact that they were cleared without payment of duty in terms of the exemption notification which was specified in the application. On that basis, the Tribunal has held that proviso to Section 11(A)(1) of the Act will not get attracted and thus, the show cause notice was beyond the period limitation as specified under Section 11(A)(1) of the Act. Going through the material on record, we find that the Tribunal is justified in taking the aforesaid view. Thus, there is no merit in this appeal - Decided against Revenue.

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• 2015 (3) TMI 627 - ALLAHABAD HIGH COURT
  

  Power of Commissioner (A) to condone the delay - Wrong availment of CENVAT credit - credit on "Rough Forged" and 'Rail' - Bar of limitation - Commissioner held hat appeal was filed not only beyond period of limitation but also beyond period permissible to be condoned under statute and therefore, it had no power to condone delay beyond maximum period prescribed - Whether dismissal of appeal by Commissioner (A) on the ground of limitation was justified or not - Held that:- Section 5 of Limitation Act is completely excluded in its application to Section 35 of Act, 1944. There the Court proceeded to consider argument that in writ jurisdiction, delay beyond 90 days, could have been condoned by High Court. Firstly, the Court considered explanation and found unacceptable. Having said so, Court also held that judgment in I.T.C.'s Case (1990 (8) TMI 173 - SUPREME COURT OF INDIA) has not rendered any law that even where statute presecibe a particular period of limitation, High Court or Supreme Court can direct for condonation. Court categorically said that all such Courts would render statutory provisions providing for limitation rather otiose. - since admittedly the appellant has not come in a writ petition, an appeal under Section 35G of Act, 1944 has come up before this Court. Even Uttrakhand High Court dismissed appeal, preferred by party [2014 (3) TMI 419 - UTTARAKHAND HIGH COURT], holding that delay was not condonable. So far as indulgence granted by Nainital High Court against recovery was in the writ petition, which has come up before this Court on the ground that recovery was patently illegal and without jurisdiction and nonest, but, no indulgence was granted in appeal preferred by assessee. - Decided against the assessee.

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• 2015 (3) TMI 626 - DELHI HIGH COURT
  

  Refund of Terminal Excise Duty - Held that:- Petitioner has not availed of exemption from TED. Therefore, quite logically, the refund of TED, cannot be denied - other objection taken in the impugned order, is that, there is a deficiency in the application, in as much as, the declaration made by NTPC Ltd. was not on its letterhead; an objection which is completely untenable. The document, which is appended at pages 49-50 of the paper book, clearly shows that the said document bears the stamp of the NTPC Ltd. The document declares that Cenvat Credit/Rebate under the Central Excise Rules has not been availed by NTPC Ltd. Therefore, this objection cannot stand in the way of the petitioner getting refund in the matter. - impugned order is set aside. The respondents are directed to refund the TED to the petitioner. - Decided in favour of assessee.

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• 2015 (3) TMI 625 - ALLAHABAD HIGH COURT
  

  Validity of summons issued - Powers under Section 14 - Wrong utilization of CENVAT Credit - STL Company is operating on papers only and has no physical existence, therefore no services could be provided by the said company to petitioner-Company - petitioner received various summons/ notice asking petitioner's Directors to appear before Excise Authorities in enquiry under Section 14 of Act, 1944 - Held that:- The custom authorities, have statutory right to examine persons and to summon them to give evidence and produce documents in connection with enquiry relating to any goods or services. In absence of any material on record, i.e., pleading with due support of the documents that the summoning for examination of persons etc. is on account of any malice, coercion, duress or undue pressure, the statutory power exercised by authorities is not to be lightly interfered in writ jurisdiction under Article 226 of the Constitution. This provision is not confined to the persons or documents within the territorial jurisdiction of concerned Officer. The purpose of summoning involves multifarious reasons which includes the inquiry into the truth of transactions in which the persons who are summoned are or may be involved or otherwise have some information etc. The mere fact that the letters sent by the Excise authorities requiring certain documents have been replied or the documents have been supplied would not entitle individuals not to be summoned for the purpose of giving evidence or otherwise examination by the Central Excise Officer.

  The mere order of summoning for giving evidence or to participate in enquiry issued by Central Excise authorities under Section 14 of Act, 1944, in our view, is not to be interfered only on the ground that it has submitted reply to earlier letters and therefore need not appear in person before the authorities concerned. When there is a specific power contained in the Act and there is nothing on record to show that it has been exercised with male fide etc., no interference at this stage is called for. - Decided against assessee.

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• 2015 (3) TMI 592 - SUPREME COURT
  

  Extended period of limitation - Suppression of facts - Manufacturing activity or not - Assessee is engaged in the business of cutting larger steel plates into smaller size and shapes as required by the customers - appellant, under the belief that the aforesaid process does not amount to manufacture did not get himself registered - Held that:- Even as per the Department, there were certain doubts relating to excisability of the process of profile cutting - if the appellant also had nurtured this belief that the process carried out by him does not amount to manufacture and did not pay the excise duty, we can safely infer that this conduct of the appellant was a bona fide conduct and cannot be treated as contumacious or willful suppression. Thus, we are of the opinion that on the facts of this case, proviso to Section 11A(1) of the Act would not be attracted. Once that is held, it is obvious that the period of limitation for serving show cause notice shall be six months. In the present case, the show cause notice covered the period from October, 1991, to September, 1996 and the show cause notice was given on 01.11.1996. In the said show cause notice when only a period of six months could be covered from the date of show cause notice, it will go back to period from May, 1996 onwards. - imposition of penalty upon the appellant is unwarranted. - Decided partly in favour of assessee.

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• 2015 (3) TMI 591 - SUPREME COURT
  

  Valuation of goods - Inclusion of cost of cartons in the assessable value of the final product - Held that:- The Collector of Central Excise (Appeals) has categorically stated in his order that these containers were placed in paper cartons of various sizes for transportation "from the factory gate" for sale to individual customers or as stock transfers. Therefore, on the facts of this case, we find that the test laid down in the aforesaid judgment in the case of Hindustan Safety Glass Works Ltd. [1985 (9) TMI 90 - SUPREME COURT OF INDIA] would not be applicable. Even otherwise, the amount involved is only ₹ 1,22,740 - no merit in this case - Decided against Revenue.

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• 2015 (3) TMI 590 - SUPREME COURT
  

  Classification of goods - manufacture - printed trade advertising material - Classification under heading 49.01 or heading 94.05 - Held that:- Process of manufacturing undertaken by the respondent i.e. printing is done by using thermocopied machine and therefore, it would fall under the head 49.01. By no stretch of imagination, such goods can be classified under the head 94.05 as no lamps and lighting fittings or search lights or spotlights are used by the respondent for the purpose of illuminated signs or illuminated name plates and sign boards. We, therefore, agree with the finding of the Tribunal. - Decided against Revenue.

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• 2015 (3) TMI 517 - CESTAT MUMBAI
  

  Waiver of pre deposit - CENVAT Credit - credit taken on molasses and mash tone - Held that:- As far as the demand for reversal of credit in respect of molasses consumed in the manufacture of denatured spirit, prima facie , we do not find any merit in the contention of the Revenue that the appellant was not entitled to take credit at all. As regards the reversal of credit on rectified spirit cleared as such the appellant has discharged a sum @6% of the value of the rectified spirit cleared as such. In these circumstances, and also considering the decisions of the Tribunal [2006 (9) TMI 59 - CESTAT,BANGALORE] and [2007 (4) TMI 31 - CESTAT,BANGALORE], the appellant has made out a strong case for grant of waiver of pre-deposit. Accordingly, we grant unconditional waiver from pre-deposit of the dues adjudged against the appellant and stay recovery thereof during the pendency of the appeal. - Stay granted.

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• 2015 (3) TMI 516 - CESTAT MUMBAI
  

  Waiver of pre deposit - CENVAT Credit - broker's service - Input service - Held that:- From the records, it is seen that the distributor appointed by the appellant have undertaken sales promotion activity also inasmuch as they have placed advertisements for the products manufactured by the appellant in the print media. Further, we observe that in the case of Bhushan Steel Ltd., in a similar situation, the adjudicating authority had allowed Cenvat Credit. In the Ambika Overseas case [2011 (7) TMI 980 - PUNJAB & HARYANA HIGH COURT] also, the Hon'ble Punjab & Haryana High Court has allowed Cenvat Credit treating the services rendered by commission agents as an “input service.” In view of the above, the appellant has made out a case for grant of stay. Accordingly, we grant unconditional waiver from pre-deposit of the dues adjudged and stay recovery thereof during the pendency of the appeal. - Stay granted.

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• 2015 (3) TMI 515 - CESTAT MUMBAI
  

  Waiver of pre deposit - Denial of the benefit of Notification No. 8/2003-CE dated 01/03/2003 - Held that:- Following decision of Universal Packaging [2010 (9) TMI 561 - CESTAT, MUMBAI] upheld by Bombay High Court [2013 (10) TMI 140 - BOMBAY HIGH COURT]. Appellant has made out a strong case in its favour for grant of stay. Accordingly, we grant unconditional waiver from pre-deposit of the adjudicated liabilities against the appellant and stay recovery thereof during the pendency of the appeal - Stay granted.

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• 2015 (3) TMI 514 - CESTAT MUMBAI
  

  Denial of CENVAT Credit - provisions of Rule 12 of the Cenvat Credit Rules, 2002 read with Section 11A of the Central Excise Act, 1944 - equivalent penalty under Section 13 - Held that:- In view of the specific provisions of law which provided for payment of duty on wires and taking of CENVAT Credit of the duty so paid during the period prior to 8.7.2004, the credit availed by the appellant in such case is in accordance with law and, therefore, the appellant has rightly availed the credit. Accordingly, I set aside the impugned order - Decided in favour of assesse.

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• 2015 (3) TMI 474 - CESTAT MUMBAI
  

  Valuation of goods - Section 4A - Whether the appellant is required to pay duty on cement bags of 50Kg supplied to construction industry on Retail Sale Price (RSP) basis or on transaction value basis - Held that:- Issue came up before this Tribunal in the case of Mysore Cement Ltd. Vs. Commissioner of Central Excise, Bangalore - II - [2009 (5) TMI 445 - CESTAT, BANGALORE] and Chettinad Cement Corporation Ltd. Vs. Commissioner of Central Excise, Trichy - [2008 (12) TMI 684 - CESTAT CHENNAI] it was held that construction industry is a service industry and, therefore, supply of cement to construction industry is exempted from declaration of Retail Sale Price (RSP) on the packages, and therefore, the assessment of such cement would not be covered by Section 4A of the Central Excise Act, 1944. Subsequently, the Hon'ble High Court of Karnataka in Commissioner of Central Excise, Bangalore-II Vs. Mysore Cements Ltd. - [2010 (8) TMI 246 - KARNATAKA HIGH COURT] dismissed the appeal filed by the Revenue and holding that assessment on RSP basis is not attracted. In the light of this decision, the learned Counsel for the appellant pleads for grant of stay and early hearing of the appeal. - appellant has made out a strong case in their favour for grant of stay. Accordingly, we grant waiver from pre-deposit of the dues adjudged against the appellant and stay recovery thereof during the pendency of the appeal - Stay granted.

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• 2015 (3) TMI 473 - CESTAT MUMBAI
  

  CENVAT Credit - Credit of excess duty paid - held that:- As per the Cenvat Credit Rules, 2004, an assessee is entitled to take credit on actual duty paid at the time of procurement of inputs. In this case, it is not in dispute that the respondent has taken credit of duty paid. Therefore, whether the excess duty paid or not is the issue between the Revenue and the supplier of the inputs. The respondent has taken the credit of actual duty paid. In these circumstances, I do not find any infirmity with the impugned order and hold that the respondent has taken CENVAT Credit correctly. Therefore, the Revenue's appeal deserves no merits hence the same is dismissed -Decided against Revenue.

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• 2015 (3) TMI 472 - CESTAT MUMBAI
  

  Denial of interest on delayed refund of pre-deposit made - Dispute settled in 1997 but refund sanctioned in 2002 - Held that:- The decision in the case of Orient Enterprises (1998 (3) TMI 137 - SUPREME COURT OF INDIA) is not applicable to the facts of this case as in this case, the appellant is claiming interest for the period March 1998 to February 2002, for the refund claim filed in December 1997. In the year 1997, the provisions of Section 11BB of the Central Excise Act, 1944 were in force. Therefore, the case law relied upon by the ld. AR is not relevant. Further, I find that in the case of Galaxy Entertainment Corpn. Ltd. [2010 (5) TMI 429 - CESTAT, MUMBAI] this Tribunal has held that interest is payable on delayed refund. Following the precedent decision of the tribunal, the appellant is entitled for interest on delayed refund. - Decided in favour of assessee.

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• 2015 (3) TMI 471 - CESTAT MUMBAI
  

  Waiver of pre deposit - Penalty under Rule 26 of the Central Excise Rules, 2002 - Assessee did not get themselves registered with the Central Excise Department under the Central Excise Law nor did they discharge any excise duty liability - Held that:- Rule 26 states that "Any person who acquires possession of, or is in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with, any excisable goods which he knows or has reason to believe are liable to confiscation under the Act or these rules, shall be liable to a penalty not exceeding the duty on such goods or two thousand rupees, whichever is greater." Therefore, primary requirement of the said rule is that the goods should be held liable to confiscation and the person should be aware that the goods are liable to confiscation. - there is no finding given by the adjudicating authority in respect of liability of confiscation of the goods. In the absence of such a finding, imposition of penalty under Rule 26 cannot be sustained. Accordingly, the appellant has made out a strong case for grant of stay. Therefore, we grant waiver from pre-deposit of the penalty imposed against the appellant and stay recovery thereof during the pendency of the appeal. - Stay granted.

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• 2015 (3) TMI 470 - CESTAT BANGALORE
  

  Waiver of pre deposit - CENVAT Credit - Modification of stay order - whether the appellant is required to pay 5% of the total value of the exempted product, ‘Slice' manufactured by them in terms of provisions of Rule 6(3) of CENVAT Credit Rules 2004 since they did not maintain separate accounts in respect of inputs used by them - Held that:- decision of the Tribunal in the case of Josts Engineering Co. Ltd [2013 (8) TMI 463 - CESTAT MUMBAI]. As submitted by the learned counsel, in that case the period involved was subsequent to the amendment carried out in Rule 6(3A) which requires the appellant to exercise an option and follow the procedure prescribed therein if the appellant does not maintain separate accounts. In Josts Engineering Co. Ltd. case, the appellants had maintained separate accounts in respect of inputs but by mistake they did not maintain separate accounts in respect of input services. When it was pointed out to them, they reversed the entire credit attributable to dutiable as well as exempted products taken by them in respect of input services. Taking this into consideration and taking the fact that appellant had maintained separate accounts in respect of inputs, the Tribunal came to the conclusion that the reversal of entire credit would be sufficient and it amounts to non-availment of credit and when credit is not availed in respect of input services at all, the provisions of Rule 6(3)(i) is not attracted. We find that the decision would be applicable to the facts of this case also. However since the Tribunal took the view in view of the fact that appellant had reversed the entire credit taken by the appellant therein and the credit was reversed where separate accounts was not maintained i.e. mainly input services, we consider that in this case also the appellant would be required to reverse the entire amount of CENVAT credit taken in respect of common input. Needless to say if an amount has already been paid, that can be deducted from the amount payable. Accordingly, the appellant is directed to reverse that credit within 8 weeks - Partial stay granted.

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• 2015 (3) TMI 429 - CESTAT CHENNAI
  

  Demand of Differential duty - excess amount was collected by the appellant from the customers in their invoices - It has been alleged that the appellants paid duty not on actual basis but on the previous month’s actual - Assesse contends that after adjustment of excess/short payment of duty, no demand will sustain. They have not collected the excess amount from their customers - Held that:- Tribunal in the case Bajaj Tempo Ltd. (2004 (7) TMI 145 - CESTAT, MUMBAI), held that net amount of differential duty is payable by the appellant after adjustment of the excess/short payment of duty. In that case, the issue relates to valuation of the impugned goods cleared from one factory of the appellants to another factory under the new Valuation Rules brought into effect from 01.07.2000. The Department contented that the appellant should have paid the differential duty and claimed refund of excess amount instead of adjustment excess/short payment. In the present case, we find that no sale of the goods involved and the appellant is a job worker and cleared the goods to the raw material supplier on the basis of conversion charges. Hence, the decision of the Tribunal in the case of Bajaj Tempo Ltd. (supra), would applicable in the present case. The decision of the LB in the case of BDH Industries Ltd. (2008 (7) TMI 78 - CESTAT MUMBAI) as relied upon by the Ld. AR is in respect of suo motto adjustment of cenvat credit, which is not applicable in the present case. - adjudicating authority to make adjustment of short payment and excess payment of duty made by the appellant and also take into consideration as to whether the appellants have collected any excess amount of duty from the raw material supplier. Thereafter, the adjudicating authority will determine the demand of duty - Decided in favour of assesse.

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• 2015 (3) TMI 428 - CESTAT KOLKATA
  

  Waiver of pre deposit of duty - Penalty u/s 11AC - Held that:- Cost Accountant had not signed the annexures to the Certificate, the Ld. Commr. (Appeal) has confirmed the Order-in-Original dated 30/01/2009 and rejected the appeal filed by the appellant. Now the Ld. Advocate submits that even though the certificate was signed but its annexures were not signed while submitting before the Ld. Commr. (Appeal). However, the same is signed now and a copy is placed before the Tribunal. The contention of the Ld. A.R. for the Revenue on the other hand is that the certificate does not conform to CAS-4 method. Therefore, the same may not be accepted at this stage. The Ld. Advocate submits that all the data required for completing the CAS-4 certificate are available in the present certificate. However, they have no objection to compile the data in accordance with CAS-4 guidelines. We are of the view that in the interest of justice, the appellant be given an opportunity to submit the certificate in proper form i.e. CAS-4 and after the said certificate is submitted, the Ld. Commr. (Appeal) would consider the same in accordance with law. Needless to mention that all issues are kept open in relation to adjudication order dated 30/01/2009.In the result, the impugned order-in-Appeal is set aside to the extent of deciding the issue in relation to the adjudication order dated 30/01/2009 and to that extent the matter is remitted to decide the issue on merit, without insisting for any pre-deposit - Decided in favour of assesse.

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• 2015 (3) TMI 427 - CESTAT CHENNAI
  

  Waiver of pre deposit - Reversal of CENVAT credit on GTA service - Held that:- Purchases orders of M/s.BHEL dt. 28.12.2010, 28.5.2011 and 16.6.2011, it is clearly indicated that contract for supply and delivery of goods is on FOR Destination. Considering the above facts and circumstances, I am of the view that applicant has made a prima facie case for waiver of predeposit of the dues. Accordingly, predeposit of entire amount of duty, interest and penalty arising from the impugned order is waived and its recovery is stayed till the disposal of the appeal - Stay granted.

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• 2015 (3) TMI 426 - CESTAT NEW DELHI
  

  Demand of CENVAT Credit - Commissioner (Appeals) found that invoices on which credit was taken were having different address than which was reflected in their STC code and registration number - Held that:- if opportunity of reconciliation is granted, they would be able to satisfy Commissioner (Appeals). To provide natural justice, it is necessary that one opportunity is granted. - Accordingly stay application could not be considered at this stage and it is disposed off. Further Order-in-Appeal is also set aside and case is remanded back to Commissioner (Appeals). He will listen both the side after issuing notice and granting opportunity to produce documents, if any and decide the case within three months from the issue of this order. - Decided in favour of assessee.

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