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Central Excise - Case Laws
Showing 161 to 180 of 184 Records
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2009 (9) TMI 350 - CESTAT, NEW DELHI
Interest and Penalty- Cenvat credit- The appellant has taken cenvat credit on capital goods received for installation of their plant and machinery. In the present case, the appellants have apparently taken the credit which was not admissible to them. Held that-We have carefully considered the submissions made from both sides. In the present case, the appellants have apparently taken the credit which was not admissible to them. There is no dispute about reversal of the credit. It was submitted on behalf of the appellant that the credit wrongly taken has been reversed on being pointed out by the Department. The credit was not utilized as they were yet to commence production. Further, there is a clear finding by the Commissioner that the credit taken by the appellant has not been utilized, and the same has been reversed immediately on being pointed out by the Department. Under these circumstances, the question of applying provisions of Section 11A for demand of duty, short levy or non levy does not arise. Consequently, the question of recovery of interest for such short levy or non levy demand does not arise. Allow the appeal with consequential relief. The stay petition is also disposed of.
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2009 (9) TMI 345 - CESTAT, NEW DELHI
SSI Exemption- Notification No. 8/98-C.E.dated 02.06.1998- The respondents manufacture medicines falling under Chapter Heading No. 30.03; when the officers visited the factory on 11-2-03, they found Oyximos-L/30vMI packed in cartons bearing batch no., manufacturing date and expiry date. The original authority held that the insignia/monogram affixed by the respondents on the packing of the goods cleared by them make the said goods as branded goods and that the brand names belong to M/s. OYSTER Lab Ltd./M/s. Focus Health Care Pvt. Ltd. and therefore they were not eligible for the benefit of Notification No. 8/98-C.E. dated 2-6-98. Accordingly, he confirmed the demand of Rs.20,828/- along with interest and imposed equal amount as penalty under Section 11AC read with Rule 173Q of CER, 1944. In the light of the decision of Commissioner of Central Excise, Trichy v. Grasim Industries Ltd. reported, in which Hon’ble Supreme Court held that “It is not necessary that the name or the writing must always be a brand name or trade name in the sense that it is normally understood. The exemption is only to such parties who do not associate their products with some other person held that- In the present case, it is clear that the names, the other details in the labels and the monograms/logo taken together clearly indicate a connection between the product and the company/firm which markets the product. This clearly amounts to use of brand name in terms of the explanation given in the notification itself for the said expression. In view of the above, we hold that the order of the Commissioner (Appeals) setting aside the order of demand of duty of Rs.20,128/- along with interest and setting aside the penalty of equal amount cannot be sustained. Therefore, we set aside the order of the Commissioner (Appeals) to the extent as above and the order of the original authority in this regard is restored. The appeal is disposed of in the above terms.
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2009 (9) TMI 339 - CESTAT, NEW DELHI
Limitation- The appellant challenge the order passed by the Commissioner (Appeals) Meerut whereby the lower appellate authority has set aside the order passed by the original authority, Meerut. The Joint Commissioner vide his order had confirmed the demand against the respondents to the tune of Rs.13,91,486/- under proviso to Section 11A of the Central Excise Act, 1944 along with the interest thereon in terms of Section 11AB of the said Act and had also imposed equal amount of penalty under Section 11AC of the said Act read with Rule 25 of the Central Excise Rules, 2002. The Joint Commissioner had granted credence to the Modvat credit amounting to Rs.8,26,264/- while deciding the actual duty liability of the respondent. Held that- It is really painful to note that an amount to the extent of about Rs.6 lakhs and odd as duty besides interest and penalty for the period 1998-99 to 2001-02 was allowed to go down the drain either by sheer gross negligence and/or connivance on the part of the excise authorities with the concerned party. In such circumstances, we do not find any case having been made out by the Department for interference in the impugned order. – Revenue appeal dismissed.
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2009 (9) TMI 337 - CESTAT, NEW DELHI
Reversal of Cenvat Credit- Whether in terms of Notification No. 2/2004, dated 8/1/2004, came into force w.e.f. 9.1.2004 exempting finished goods? The appellant submits that because finished goods has been exempted in terms of Notification No. 2/2004 dated 8.1.2004, Cenvat credit already utilized cannot be called back by a reversal entry. Held that- We make it clear with the aforesaid reasoning that unutilised Cenvat credit existing on record as on 8-1-04 not being meant to be utilised, is never to be utilised during currency of the notification and the same calls for reversal. - . In view of the mandate of Rule 14 of the Cenvat Credit Rules, 2004, to call back the Cenvat credit without being wrongly taken or wrongly utilised, adjudication is unsustainable
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2009 (9) TMI 327 - CESTAT, NEW DELHI
Captive consumption- the assessee is a manufacturer of cotton yarn falling under Chapter sub-heading 5205 00 and they are also manufacturing sewing thread falling under Heading 5204. The assessee is clearing part of the cotton yarn manufactured by them as such on payment of duty; they are also using part of the yarn in their own factory for manufacture of sewing thread. The dispute relates to the stage at which duty becomes payable on the cotton yarn and the value to be adopted for the purpose of paying the duty on the cotton yarn. The original authority has held that the duty on yarn was payable at the time of clearance of waxed doubled cotton yarn which were used captively in the manufacturing of sewing thread and would be at 115% of Rs.74/- per kg. for 28 counts. On the above finding, the original authority has confirmed demand of duty of along with interest and imposed penalty under Section 11AC and also imposed a penalty of Rs.1 lakh under Rule 25 of the Central Excise Rules. Held that- Regarding the invocation of extended period of limitation, it is observed that the assessee no doubt filed classification list regarding manufacture of yarn and sewing thread. They have also not filed any returns relating to such production and clearances of yarn so used for sewing thread. We have not been shown that the Department was made aware of the fact that the assessee was clearing yarn without payment of duty and using it for the purpose of manufacture of sewing thread. In view of the above we hold that there is willful suppression of relevant facts and therefore the extended period is rightly invocable. On the same grounds, the penalty under Section 11AC is also sustainable. Therefore, we are in agreement with the submissions of learned DR that the Commissioner (Appeals) was not justified in reducing the penalty under 11AC to an amount lower than the duty short paid. However, in the facts and circumstances of this case we do not find justification for a separate penalty under Rule 25 of the Central Excise Rules.
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2009 (9) TMI 326 - CESTAT, MUMBAI
Excisability- Circular No. 58/1/2002-CX., dated 15.1.2002- In adjudication of a show-cause notice dated 16-4-2008, the ld. Commissioner confirmed a demand of duty of Rs.88,15,196/- against the main appellant (hereinafter referred to as the assessee) for the period 2002/2007 by invoking the extended period of limitation on the ground of suppression of facts. He also demanded interest on duty under Section 11AB of the Central Excise Act. The manufactured items were cleared under SSI Exemption Notifications, without payment of duty. Held that- the adjudicating authority chose to hold the commodity to be excisable goods without examining the manner in which it had taken shape and come into existence, regardless of the guidelines laid down and illustrations given by the Board in its circular dated 15-1-2002, we are of the considered view that the case should be adjudicated afresh. We allow these appeals by way of remand directing the ld. Commissioner to pass fresh orders of adjudication, in accordance with law, after giving the appellants a reasonable opportunity of being heard on all issues.
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2009 (9) TMI 321 - CESTAT, NEW DELHI
Cenvat Credit- Input Services- Input service credit availed by assessee in respect of service tax paid for outward transportation was denied. In the light of the decision of ABB Ltd. v. CCE & ST 2009 -TMI - 34139 - CESTAT, BANGALORE, in which held that service availed by a manufacturer for outward transportation of final products from place of removal should be treated as an input service, thereby enabling the manufacturer to take the credit of service tax paid on value of such services, held that- set aside the impugned order and allow the appeal.
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2009 (9) TMI 307 - PUNJAB AND HARYANA HIGH COURT
Removal of goods without payment of duty- The assessee company was engaged in the manufacture of excisable goods. The Anti-Evasion Bench of Central Excise Commissionerate on receiving information that the assessee was removing it goods clandestinely and was evading Central Excise Duty, conducted a search upon the assessee and gathered certain material. The adjudicating authority in view of admission made by assessee that it had indulged in removal of goods without payment of duty held that the assessee had cleared the goods with a collective intention to evade payment of duty. He also held that there was no merit in the plea of to evade payment of duty, thus confirm the demand. Commissioner (Appeals) upheld the order of the adjudicating authority. Held that- once it is admitted that the petitioner had indulged in removal of goods without payment of duty, the obligation to remedy that defaults arise immediately, thus the writ petition, accordingly fails and dismissed.
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2009 (9) TMI 261 - CESTAT, BANGALORE
Cenvat Credit- output services-Classification- The assessee was engaged in providing the output service of site formation and clearance services, the assessee had purchased capital goods like excavators, dozers, craters and tippers. The invoice issued by manufacturer for the sale of tippers to the assessee indicated Chapter sub-heading as 8704.239. The said classification had been accepted by the revenue. The assessee availed of the Cenvat Credit of excise duty paid on tippers. The adjudicating authority denied the benefit of Cenvat credit of excise duty paid on tippers on the ground that assessee has availed an ineligible credit, thus confirm the demand for reversal of credit. Held that- the impugned order is valid to the extent it directs the assessee to reverse the ineligible credit but set aside the order to the extent it imposed penalty and interest.
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2009 (9) TMI 178 - BOMBAY HIGH COURT
Quantum of pre-deposit - Tribunal dismissed the appeal for failure to comply with the order of pre-deposit - if the judgment in Commissioner of Central Excise, Delhi v. Carrier Aircon Ltdis considered the petitioner herein may be entitled to Modvat credit on chillers – Appellant has taken us through the profit and loss account for the year ended 31st March, 2008 which shows that the sale and other income were about Rs. 19.5 lacs and for the previous year Rs. 17.65 lacs. - Considering that the petitioners have made out a case and the hardship that will be occasioned to the petitioners if the Appeal is dismissed without the appeal being heard on merits the ends of justice would be met if the order of dismissal is set aside and the order of pre-deposit is varied to the extent that the petitioners to deposit a sum of Rs. 15.00 lacs - Tribunal to hear the appeal on merits
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2009 (9) TMI 177 - BOMBAY HIGH COURT
Tribunal rejecting the application filed by the appellant for restoration of its appeal for non-prosecution. - In the present case, the Tribunal has dismissed the appeal on the absence of the appellant only on one occasion. The fact that the appellant immediately thereafter applied for restoration of the appeal shows his intention that he was interested in prosecuting the appeal and may be he had a justifiable cause for his absence on one occasion. In the circumstances, the Tribunal ought to have restored the appeal to the file. - Revenue then submitted that the impugned order arises out of a second application for restoration of the appeal filed by the petitioners. Second application for restoration was not maintainable as the first application was dismissed. As we have held that initial order of dismissal itself was without jurisdiction as the appeal was dismissed for default without there being a power, the fact of dismissal of the first application would not come in the way of the petitioner. The Tribunal ought to have corrected its mistake on being brought to its notice that petitioner was interested in prosecuting the appeal and as such the Tribunal had no power to dismiss the appeal for default. In the light of that, Tribunal ought not to have dismissed the second application on a technical ground. For these reasons, the petition is allowed and the matter is restored to file of the Tribunal. The Tribunal shall hear the appeal on merits after notice to the petitioner.
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2009 (9) TMI 152 - ALLAHABAD HIGH COURT
‘Aluminium Dross and Skimming’ – excisability – department seeking removal of goods on duty payment - explanation to Section 2(d) of the Central Excises and Salt Act, 1944 - Prima facie, we find that the insertion of the explanation under Section 2(d) providing for a fiction in law by a deeming clause in definition of “goods” to include any article, material or substance which is capable of being bought and sold for a consideration, and to treat such goods as marketable, would make the ‘Aluminium Dross and Skimming’ liable to excise duty. - The excise duty is levied on production and manufacture which means bringing out a new commodity, substance, and it is implicit that such goods must be usable, saleable and marketable - If the goods are marketable or are deemed to be marketable, as on now by the explanation added to Section 2(d) of Section 78 of the Finance Act, 2008, such goods included in the Schedule would attract excise duty. - Aluminium Dross and Skimming liable to excise duty as per deeming fiction - at this stage, we are not inclined to grant any interim order.
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2009 (9) TMI 148 - ALLAHABAD HIGH COURT
Petitioners have challenged the constitutional validity of Notification No. 2/2005-C.E. (N.T.), and Notification No. 4/2005 Central Excise (N.T.) dated 23rd February 2005 on the ground that in the neighbouring States, exemption has been granted to the manufacturers of patent or proprietary medicaments and not patented medicaments. - petitioner’s plea is that notification ibid directly affects the petitioners’ right to carry on business - The power to grant exemption rests with the Central Government and for the purposes of development of any particular area or State, if the Central Government grants exemption from levy of excise duty to any manufacturer or any particular industry, it can not be said to affect the fundamental right guaranteed to the petitioners under Article 19(1)(g) of the Constitution of India. – petition dismissed - petitioners may approach the Central Government for grant of exemption to their products
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2009 (9) TMI 144 - CESTAT, KOLKATA
Remand power of Commissioner - The appellants filed this appeal against the impugned order whereby the Commissioner (Appeals) remanded the matter to the adjudicating authority for re-examination of the facts and law and directed the adjudicating authority to pass a fresh order. - Hon’ble Supreme Court in the case of MIL India Ltd. v. Commissioner of Central Excise, Noida reported in [2007 - TMI - 1196 - SUPREME COURT OF INDIA] and the Hon’ble Punjab & Haryana High Court in the case of C.CEx. v. Enkay (India) Rubber Co. Pvt. Ltd., held that Commissioner (Appeals) has no power to remand the matter to the adjudicating authority after the amendment made under Rule 35A of the Central Excise Rules - Gujarat High Court in the case of C.CEx. Ahmedabad-I v. Medico Labs, held that Commsioner (A) having held that even after the amendment to the provisions of Section 35A of the Central Excise Act, the Commissioner (Appeals) has power to remand - held that the appellate authority has power to pass such order as it deemed fit confirming, modifying or annulling the decision of the appealed against and an order of the remand necessarily annuls the decision which is under an appeal before the appellate authority - In view of the above decision of the Hon’ble Supreme Court, the order of remand necessarily annuls the decision which is under an appeal. In the circumstances, I find no merit in the appeal and the same is dismissed.
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2009 (9) TMI 142 - CESTAT, KOLKATA
Revenue filed this Appeal against the impugned order whereby Commissioner (Appeals) remanded the matter to the adjudicating Authority to decide afresh - contention of Revenue is that the Commissioner has no power to remand after the amendment to the provisions of Section 35A of the Central Excise Act. - This issue has already been settled by the Tribunal in the case of Commissioner of Central Excise, Jamshedpur v. Telco Construction Equipment Co. Ltd. in which the Tribunal held that even after amendment, Commissioner (Appeals) having power to remand - In view of the above decision of the Tribunal I find no merit in the Appeal. The same is dismissed
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2009 (9) TMI 92 - BOMBAY HIGH COURT
Maintainability of writ petition before single judge Bench of HC against stay order of tribunal – Held that petition is maintainable even before Single Judge – revenue’s submission that petition is entertainable only by Division Bench is not acceptable – assessee claimed exemption for supply to water projects, etc. - Tribunal granted waiver of only penalty but not the duty demanded – case is not covered by any judgment to conclude that pre-deposit waiver warranted – question as to whether aseessee entitled to exemption to be decided by tribunal after considering arguments – tribunal not shown to have passed perverse/untenable order - Held that making any observation on these issues in the present writ petition arising out of an order refusing complete waiver would amount to preempting the discussion and decision which may be appropriately required to be taken by the appellate Tribunal. – so the petition is dismissed – further, it is held that expression used in section 35G is wide enough to include order of waiver of pre-deposit so appeal is maintainable against pre-deposit order
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2009 (9) TMI 72 - HIGH COURT OF JUDICATURE AT ALLAHABAD
Order of Commissioner (Appeals) ... ... ... ... ..... n Paragraph 6 of the impugned order, the Commissioner (Appeals) had, while considering the question of prima facie case, merely held that inadmissibility of the discount/deduction have already been discussed in detail. Therefore, there is no prima facie case. 3. We have heard Shri A.P. Mathur, learned counsel for the petitioner and Sri S.P. Kesarwani, learned Senior Standing Counsel. 4. We have perused the impugned order and find that the Commissioner (Appeals) has not adverted to the various plea raised by the petitioner while considering the prima facie case and was swayed away by the findings recorded by the Adjudicating Authority. 5. The approach of the Commissioner (Appeals) cannot be justified. The order dated 26th October, 2007 passed by the Commissioner (Appeals) therefore cannot be sustained and is hereby set aside. 6. The Commissioner (Appeals) is directed to reconsider the stay application afresh in accordance with law. 7. The writ petition succeeds and is allowed.
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2009 (9) TMI 64 - BOMBAY HIGH COURT
Stay petition - tribunal rejected the appeal for failure to deposoit the amount - held that - One additional fact in this case is that appeal was dismissed when the matter was pending before this court by the Tribunal even when its attention was brought to the fact inspite of that the appeal was dismissed. We are aware that it is open to the Tribunal to dismiss an appeal for non compliance. We are also aware of the fact that it is open to the Tribunal in the absence of pre-deposit by the stipulated date to dismiss the appeal. However, when a party brings to the notice of the Tribunal that an appeal is preferred and is pending judicial exercise to avoid multiplicity of proceedings, would be to grant reasonable time to enable the petitioner to produce an order from this court, and on failure to do so proceed with the matter. Ultimately, the Tribunal is subject to the supervisory jurisdiction of this court. - stay granted - appeal to CESTAT restored.
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2009 (9) TMI 55 - AUTHORITY FOR ADVANCE RULINGS
Manufacture – Sale of packed goods – Proactiv Solution Revitalizing Toner, Proactiv Solution Renewing Cleanser, Proactiv Solution Repairing Lotion and Proactiv Solution Refining Mask - Held that – labeling at the port of import itself can not be amount to manufacture – goods falling under heading 3003, 3004, 3303, 3304 or 3305 conversion of powder into tablets or capsules, labelling or re-labelling of containers intended for consumers or re-packing from bulk packs to retail packs or adoption of any other treatment to render the product marketable to the consumer would be construed as manufacture - Since the activity of putting the individual products into kits, packaging and labeling of the kits has been held to amount to manufacture, the process of preparation of such kits is excisable and the kits are liable to excise duty under Section 3 of the Central Excise Act, 1944 – Crevat Credit is available.
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2009 (9) TMI 53 - HIMACHAL PRADESH HIGH COURT
Levy of Penalty – Duty deposited voluntarily before detection – section 11AC – held that - Once a case is covered by the situation mentioned in the Section, mere deposit prior to issuance of show cause notice under Section 11A of the Act will not necessarily negate the situation mentioned in the said Section. - where the assessee is guilty of taking an action which is not bona fide then penalty can be imposed - applicability of Section 11AC is not excluded merely on deposit of the amount after having been caught but before the issuance of show cause notice – levy of penalty upheld
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