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Central Excise - Case Laws
Showing 201 to 220 of 240 Records
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2011 (7) TMI 325 - CESTAT, AHEMDABAD
Penalty - whether penalty was imposable under Section 76 & 78 - respondent failed to pay service tax in respect of amounts received by them for providing services as direct selling agents of various banks - In view of the Board s circular No.87/5/2006-ST dated 06.11.06 as well as the provisions of Section 73 of the Act, this was a case where no action was warranted - find that the decisions of the Tribunal in the case Vinayak Auto Lines [2010 -TMI - 78515 - CESTAT, AHMEDABAD] are applicable to the facts of this case - The actions of the respondent would clearly show that they had no intention to evade duty and they promptly paid the service tax with interest - Therefore this is a fit case for invoking Section 80 of Finance Act, 1994 and waive penalties imposed under Section 77 & 78 also leave alone setting aside the order of the learned Commissioner (Appeals) waiving penalty Section 76 of the Act - Since I have taken a view that penalty under any of the sections namely 76, 77 & 78 of the Act are not imposable, the question of considering whether penalty was imposable under Section 76 & 78 of Act does not arise.
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2011 (7) TMI 316 - CESTAT, NEW DELHI
Demand - Classification - Scrutiny - None appeared for the appellant though a notice for hearing had been sent to them well in time and the same had been acknowledged - Since the deemed modvat credit order dated 7.4.1986 was withdrawn in respect of iron and steel scrap with effect from 29.08.1986, the consignments of iron and steel scrap received upto 28.08.1986 would be eligible for deemed modvat credit irrespective of the date on which the entries were made in the RG-23A Part-II register, as the availability of deemed credit is linked with the quantity of the specified inputs lying in stock on or after 1.3.86 and upto 28.08.1986 - The Commissioner s impugned order has not given any finding that the Movat credit of Rs.10,83,763/- which has been denied, was in respect of the quantity of scrap which had actually been received in the factory after 28.08.1986 or before 28.08.1986 - Appeal is allowed by way of remand to adjudicating authority
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2011 (7) TMI 310 - CESTAT, AHEMDABAD
Demand - Demand of duty of Rs. 2,26,077/- confirmed against the manufacturing unit, stands paid by them along with interest and penalty to the extent of 25% imposed upon them - Revenue, contended that there is no provisions under the law for adopting the criteria of reducing penalty to 25%,find that the main manufacturer having been deposited the entire duty along with interest and 25% of penalty, reduction in penalties imposed upon the present appellants is called for in the interest of justice - Accordingly, reduce the penalties imposed on the all the appellants to 25% of penalties imposed by the lower authorities.
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2011 (7) TMI 299 - CESTAT, AHEMDABAD
Cenvat credit - Demand - commission agent service received - The appellants submitted that the issue is settled now in favour of the appellants in view of the decisions of the Hon’ble High Court of Mumbai in the case of Coca Cola India Pvt. Ltd. [2009 -TMI - 34433 - BOMBAY HIGH COURT] - According to these decisions, service tax credit taken in respect of services relating to business activity is admissible and the commission agents are engaged in the activity of promoting sales of the goods manufactured by the appellants and therefore such credit is admissible - Decided in favour of assessee.
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2011 (7) TMI 298 - CESTAT, AHEMDABAD
Penalty under Section 11AC - Credit avail on the basis of fake invoices - There was no clear finding of the Commissioner (Appeals) or the original adjudicating authority regarding any verification of the invoices concerned to prove that they are fake - Accordingly the case is remanded for denovo adjudication by the original adjudicating authority by giving necessary opportunity to the appellant as well as the Revenue to putforth their case.
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2011 (7) TMI 297 - CESTAT, AHEMDABAD
Drawback - fixation of brand rates - CBEC Circular No.39/2001-Cus, dt.06.07.01 - original adjudicating authority should considered the verification report and also the fact that there was a fire accident in the appellant s premises subsequently and the circular which was to be the basis for considering the drawback claim, before reaching the conclusion that the appellants are not eligible for drawback - the original adjudicating authority should once again consider the drawback claims in terms of CBEC circular issued in 1999 as decided by Hon'ble Supreme Court and also take into account the verification report already submitted by the authorities and giving an opportunity to the appellant to present their case, if the authorities still find that the drawback claims are not admissible or there are certain omissions - Thus, the matter is remanded to original adjudicating authority for fresh consideration of all the issues except limitation
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2011 (7) TMI 289 - CESTAT, AHEMDABAD
Demand - Manufactured and cleared the goods under Notification No.214/86 - Cenvat credit availed in respect of inputs utilized in the goods manufactured on job work basis - Revenue, submitted that in this case the learned Commissioner (Appeals) has taken note of the fact that Notification No.214/86 by an amending Notification No.20/2003-CE dated 25.03.03 has been amended to make it deemed to have been issued under Section 5A of Central Excise Act, 1944 and therefore the goods cleared on job work basis clearly fall under the definition of exempted goods now after 25.03.03 and therefore the demand is sustainable - The Tribunal in the case of Sterlite Industries India Pvt. Ltd. [2005 -TMI - 53815 - CESTAT, WEST ZONAL BENCH, MUMBAI] has held that in such cases, cenvat credit is admissible - Decided in favour of assessee.
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2011 (7) TMI 287 - CESTAT, AHEMDABAD
100% EOU - whether the goods manufactured by the EOU were manufactured before they attained the status of EOU and out of duty paid goods or not - The respondent became a 100% EOU in September 2006. Prior to that it was a DTA unit - Department is not contesting the fact that respondent could have cleared the goods to DTA if they were manufactured out of duty paid inputs before they attained the 100% EOU status - In fact the authorized representative submitted that these goods were manufactured out of duty paid inputs before the unit attained 100% EOU status - Since the Range Officer s report was also not made available to the respondent and they did not get an opportunity to produce supporting evidence and also contest the Range Officer s report, even though appeal is required to be allowed in view of the error in fact finding by the learned Commissioner (Appeals), the same has to be remanded to the original adjudicating authority so that the respondents get an opportunity to present their case and also contest the Range Officer s report by producing evidences.
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2011 (7) TMI 282 - CESTAT, AHEMDABAD
Penalty imposed under Rule 209A - goods cleared without payment of duty - The whole argument is that once the partnership firm is penalised, the individual partners on whom penalty cannot be imposed is only for argumentative propensity - Nevertheless, the nature of the penalty to be imposed does not change - By proposing penalties under various provisions, the law itself distinguishes the nature of violations and responsibilities of the firm and on the person for violations committed for the sake of justice. - The personal penalty on person is different from the mandatory penalty imposed on the firm (emphasis supplied) under Rule 173Q(1) - Substitution of penalties is not intended in any law or legal interpretations - Held that a personal penalty on the individual or partner is different from a penalty on the partnership firm provided the commissions or omissions of the partner are proved beyond doubt warranting a penalty if Act/Rule prescribes so in the instant case - Decided against the assessee.
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2011 (7) TMI 276 - CESTAT, NEW DELHI
Penalty - Debarment orders - Since, credit which was deferred by the original authority is deemed to have been restored after two months - Therefore, the demand of duty on the ground that there was restriction in use of the credit for two months would lead to double payment of duty by the respondents - Therefore, allow the credit to be adjusted towards dues at the time of clearances of final products,direct the respondents to pay interest for the period of the months in each case - In other words, once the interest is paid, the credit denied shall stand restored and regularized towards duty due at the time of clearance of the products - Since there is clear violation of utilization of credit contrary to the debarment orders issued under the Central Excise Rules, held that the respondent is liable to penalty - Decided against the assessee.
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2011 (7) TMI 273 - CESTAT, NEW DELHI
Debarment order - demand of interest - debarment order has been issued validly debarring assessee using the credit for two months - By implication, the credit barred from utilization was available after two months and therefore matter requires regularization - Therefore, the respondents are directed to pay the interest as demanded in the order of the original authority - The demand of duty equivalent to credit which was debarred by two months and allowed to be utilized thereafter will amount to double payment - Therefore restore the order of the original authority in so far as it related to demand of interest for two months only. Refund - Since, the show cause notice itself demanded only the amount of ₹ 16,24,872/- on the ground that the same was paid using credit. We have not been shown that the respondents has paid another amount of ₹ 3,53,171/- thereafter - Therefore, we are unable to find the basis on which the Commissioner (Appeals) came to the conclusion that there was double payment. He only refers to the payment of ₹ 4 lakhs under TR-6 Challan which has been taken as credit in PLA. The debit has been made, as per PLA extracts enclosed for an amount of ₹ 3,53,171/- on 24.6.01 - Further, we find that original authority has taken the stand that ₹ 3,53,171/- was not paid under protest and there is no indication of protest from the PLA extracts - Therefore, the order of the Commissioner (Appeals) sanctioning the refund on the ground that there was double payment is erroneous - Decided in favour of revenue.
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2011 (7) TMI 272 - CESTAT, MUMBAI
Exemption - Notification No. 6/2006-CE dated 1.3.2006 - When the pipes are used for projects which supply water for both industrial and non industrial purposes, whether the exemption would be available or not - There is no dispute that excise duty exemption is available for pipes needed for projects supplying water for animal or human consumption under Notification No. 6/2006-CE dated 1.3.2006 and pipes supplied to water projects used for agricultural or industrial use under exemption Notification No. 3/2004 - Both the notifications stipulate the condition that a certificate from the same District Collector should be obtained for availing the exemption - Held that:- the pipes were used for the water supply project which was supplying bulk of the water for domestic use and even when it was used in the industry, it was used for gardening and flushing of toilets which again are not in the nature of industrial use of water. It is also on record that even when it was used for industrial purpose, it was used for purposes other than as raw material.Therefore, non-mentioning of Notification No. 3/2004-CE in the said certificate obtained from the District Collector can at best be described as a minor technical infraction and for such minor technical discrepancy in the said certificate, the substantive benefit granted under an exemption notification should not be denied - Decided in favour of assessee.
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2011 (7) TMI 270 - CESTAT, NEW DELHI
Demand - Notification No.6/2006-CE dated 1.3.2006 - Rule 9 of central excise rule - Board issued notification 35/01-CE (NT) dt.26.6.01 prescribing conditions, safeguards, and procedure for registration - Separate registration is required in respect of separate premises except in cases where two or more premises are actually part of the same factory (where processes are interlinked), but are segregated by public road, canal or railway line - In the present case, undisputedly show cause notice dt.23.5.06 sought to treat the three premises as three independent factories and proposed revoking the common registration and therefore sought to deny the exemption - The common registration therefore makes the three different premises as belong to the same factory - Decided in favour of the assessee
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2011 (7) TMI 269 - MADRAS HIGH COURT
Waiver of interest - The petitioner is a manufacturer of chewing tobacco and it was issued show cause notice on 23.12.2002, demanding duty of Rs.64,08,807/-. An application for settlement was filed and the said application was finally settled by the Commission on 30.09.2005, wherein, the duty was confirmed. Though the benefit of immunity from penalty and prosecution was granted, the interest was levied at the rate of 10% per annum. The petitioner was aggrieved by the order with regard to charging of simple interest at the rate of 10% per annum and filed a Writ Petition in W.P.No.7405 of 2006 - Held that:- immunity granted - interest waived.
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2011 (7) TMI 264 - CESTAT, NEW DELHI
Demand, interest and penalty - SSI exemption - Whether the appellants were entitled for availing exemption under Notification No.8/2003-CE dated 1.3.2003 in respect of certain goods while availing cenvat credit in relation to some other goods - Held that:- clause 3, 3A and 4 of the said notification would disclose that the manufacturers are not debarred from availing the benefit under the said notification in relation to the goods other than the goods which are excluded from the benefit of the said notification while simultaneously seeking to avail the benefit of cenvat credit or modvat credit in relation to such excluded goods provided they are cleared on payment of full duty - Hence, the impugned orders cannot be sustained and are liable to be set aside and proceedings against the appellants be quashed with consequential relief .
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2011 (7) TMI 263 - CESTAT, NEW DELHI
Refund - in terms of the Purchase Order dt. 22.09.2006, the appellants supplied 16 transformers declaring the value at Rs. 23,52,00,000/- and paid excise duty amounting to Rs. 3,84,78,720 - According to the Price Variation Clause, the prices of the goods can be increased or decreased subsequently based on the Price formula prescribed by India Electric and Electronics Manufacturers Association (IEEMA) - The prices were reduced by the buyer unilaterally in terms of the price variation clause contained in the purchase order - The certificate issued by PSEB clearly shows that excise duty amounting to Rs. 3,69,48,023/- has been reimbursed to the appellants against the excise duty paid was Rs. 3,84,78,720/- resulting in an excess payment of Rs. 14,44,529 - in case where the duty is paid provisionally under the Act or rules made thereunder the claim for refund can be lodged within a period of one year from the date of adjustment of duty after the final assessment thereof - Since the price variation clause empowers the buyer to reduce the price subsequent to the clearance of the goods and actually the price is reduced, therefore, the manufacturer is entitle for refund of the difference between the amount actually paid and amount becoming payable in terms of modified price - Such a variation of price or lesser payment of price subsequent to the clearance of the goods either on account of some agreement between the manufacturer and the buyer which has no sanction under the statute dealing with the duty liability can be of no help to the assessee to claim refund Regarding contention about non applicability of principles of unjust enrichment - Merely because the manufacturer receives an amount lesser then what has been disclosed in the invoice issued at the time of clearance of goods and payment of duty that itself cannot construe to means that the manufacturer has not passed on the burden of excise duty on the customer - Such receipt of lesser amount could be for various reasons, being so, it cannot be said that the principles of unjust enrichment would not be applicable in relation to the cases of the type in the matter in hand - Decided against the assessee
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2011 (7) TMI 260 - BOMBAY HIGH COURT
Waiver of predeposit - During the course of the conversion, waste and scrap was generated which was retained by the Appellant and cleared on the payment of duty - it would be appropriate in the interests of justice to remand the proceedings back to the Tribunal for reconsideration - As a matter of fact the Division Bench held that both the High Courts of Madras as well as this Court would have territorial jurisdiction and it was open to a suitor to select a forum which was normally the case when the cause of action fell within the territorial jurisdiction of two Courts - In this view of the matter and without expressing any opinion on the merits of the question as to whether a prima facie case has been made out, we set aside the impugned order of the Tribunal and remand the proceedings for a fresh determination - Appeal is disposed of
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2011 (7) TMI 258 - KARNATAKA HIGH COURT
Demand - Cenvat credit availed when goods were dutiable - subsequently goods exempted from excise duty - Notification No.30/2004-CE dt. 9.7.2004 - assessee ought to have reversed cenvat credit - There was a delay in reversal of those entries (cenvat credit) - it is contended that the payment of interest is now well settled as compensatory in nature, when the duty is payable on a particular date and if it is paid on a subsequent date, the Revenue has to be compensated for the delay in payment of duty - interest to be paid - decided against the assessee.
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2011 (7) TMI 253 - CESTAT, MUMBAI
CENVAT credit - Provisional assessment - Held that: input supplier has actually paid higher quantum of duty and on the final assessment, has not claimed refund of the same - It is significant to note that the rule allowed credit of duty paid on inputs/capital goods rather than credit of duty payable on the goods. Therefore, whatever duty was paid by the input manufacturer/supplier should be available as CENVAT credit to the manufacturer of the final product - Decided in favour of the assessee
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2011 (7) TMI 243 - CESTAT, NEW DELHI
Cenvat credit - Material send back for reprocessing and received back the material after reprocessing - The credit taken on 1.9.05 stands reversed on 2.9.05 when the goods were returned for processing - The credit was taken only on 3.11.05 after receipt of the processed goods and only the said credit has been utilised - The earlier credit taken on 1.9.05 having been reversed on 2.9.05, there is no question of taking credit for the second time - The denial of credit holding that the goods received on 3.11.05 may not be the same as goods cleared by the appellants on 2.9.05 is not justified - Decided in favour of assessee. Notional credit on the wastage of yarn - job work - This credit has been denied on the ground that so called waste as claimed by them has occurred during the process of weaving and waste has not been received by the appellants and there is no documents justifying the credit taken on the waste - The denial of credit and consequent demand along with interest is, therefore, justified.
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