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Showing 321 to 340 of 871 Records
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2012 (5) TMI 556
Demands on ethanol blended petrol - Held that:- under Section 11C of the Central Excise Act, the Central Govt. issued Notification No. 25/2006-CE dt 20/11/2006 exempting the above product from payment of the aforesaid duties of excise for the period from 1/7/2004 to 3/8/2004. Obviously, this Notification was issued during the pendency of the present appeal - Section 11C Notification of the Govt., the respondent has no liability to pay the aforesaid duties of excise demanded by the appellant - Decided against Revenue.
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2012 (5) TMI 555
Issues: Compliance with predeposit order, modification of Stay Order, financial hardship plea, dismissal of appeal for non-compliance with Section 35F of the Central Excise Act
The judgment by Appellate Tribunal CESTAT BANGALORE, delivered by Shri P. G. Chacko, involved a case where the appellant was directed to predeposit 50% of the duty amount and report compliance by a specified date. Despite directions, there was no evidence of predeposit on record on the appointed date. The appellant filed a miscellaneous application seeking modification of the Stay Order, citing financial hardships. However, no representation was made by the appellant during the proceedings. The Tribunal considered the application but found no prima facie case for modification of the Stay Order. Due to the lack of evidence of predeposit, the appeal was dismissed for non-compliance with Section 35F of the Central Excise Act.
The first issue addressed in the judgment was the compliance with the predeposit order issued by the Tribunal. The appellant was directed to predeposit 50% of the duty amount and report compliance by a specified date. However, on the appointed date, there was no evidence of predeposit on record. Despite a miscellaneous application filed by the appellant seeking modification of the Stay Order and citing financial hardships, no representation was made by the appellant during the proceedings. The Tribunal noted the absence of evidence of predeposit, leading to the dismissal of the appeal for non-compliance with Section 35F of the Central Excise Act.
The second issue involved the appellant's request for the modification of the Stay Order. The appellant filed a miscellaneous application seeking modification of the Stay Order on certain grounds, including financial hardships. However, despite considering the application, the Tribunal found no prima facie case for modification of the Stay Order. The appellant's plea of financial hardships was reiterated in the application, but the lack of representation during the proceedings impacted the Tribunal's decision. Ultimately, the Tribunal rejected the miscellaneous application for modification of the Stay Order.
In conclusion, the judgment highlighted the importance of compliance with predeposit orders and the implications of non-compliance with Section 35F of the Central Excise Act. Despite the appellant's attempt to seek modification of the Stay Order based on financial hardships, the Tribunal found no sufficient grounds for such modification. The dismissal of the appeal underscored the significance of adhering to procedural requirements and fulfilling predeposit obligations as mandated by the law.
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2012 (5) TMI 554
Denial of CENVAT Credit - contravention of Rule 9 of Cenvat Credit Rules, 2004 - Held that:- it is apparent that as per Section 37C(1)(a), it was obligatory on the part of the Revenue either to tender a copy of the decision of the adjudicating authority to the assessee or to sent it by registered post with acknowledgement due to the assessee or its authorised agent. In this case, registered AD post mode was not adopted by the department for serving the appellant with copy of the order-in-original. There is no evidence on records to show that the copy of the order-in-original was physically tendered to the appellant or his authorised agent. Thus, in our considered view, it is clear case in which mandate of Section 37C(1)(a) have not been followed by the Revenue. As such, there can be no presumption of service of order-in-original sent to the appellant through speed post. That being the case, the order of the Commissioner (Appeals) which is based upon presumption of service of order sent by speed post cannot be sustained - Matter remanded back - Decided in favour of assessee.
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2012 (5) TMI 553
Refund of unutilised cenvat credit - Held that:- Following decision of assessee's own previous case in [2011 (8) TMI 980 - CESTAT AHMEDABAD] - proviso itself makes it clear that the restriction is applicable only in respect of Cenvat credit claimed as refund and is not applicable to terminal excise duty paid as drawback by under Foreign Trade Policy - EOUs who receive duty paid goods can avail input credit for the duty paid on such goods and utilize the credit for payment of duty on DTA clearances and if for some reasons, the credit cannot be utilized, the same can be claimed as refund under Rule 5 of CENVAT Credit Rules. In addition, as per para 8.3 of Foreign Trade Policy, the supplies to EOUs are treated as Deemed Export. Thus, the manufacturers have the additional facility to claim the benefit of refund of Terminal Excise Duty and deemed Export drawback on such supplies to EOUs. - Decided against Revenue.
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2012 (5) TMI 552
Waiver of pre-deposit of penalty - Clandestine removal of goods - Held that:- Surprisingly, no duty confirmation proceedings stands initiated against the manufacturer of the goods on the allegation of clandestine removal of the same. The penalty stands imposed upon the present appellant on the findings that the Pan Masala in question was non-duty paid. I really fail to understand that if that be so, why Revenue shied away from initiating proceedings against the manufacturer for confirmation of demand of duty. In the absence of such an action on the part of the Revenue, to hold the appellant liable for penalty on the ground of transporting the non-duty paid goods, exceed all the basic principles of justice - admittedly the bags were delivered to the transporter in packed condition, who prepared the requisite documents for the transportation of the same relying upon the disclosure of the goods made by the consignor. The transporter cannot be expected to act like an excise officer to find out the duty paid or non-duty paid character of the goods before accepting booking of the goods and before transportation of the same. As such I find no justifiable reasons and on the contrary I find that the appellant has been put to unnecessary harassment and litigation by the department by taking inappropriate and unjust stand against the appellant - Decided in favour of assessee.
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2012 (5) TMI 551
Duty demand - appellants claim shrinkage of grey fabrics higher than the limit prescribed by the Board vide their Circular dated 9-3-1994 - Held that:- Admittedly, apart from the shrinkage, which stands claimed by the respondents to the extent of 12.53%, there is absolutely no other evidence on record to indicate any removal of their final products without payment of duty. In the absence of same, confirmation of demand cannot be upheld - Decided against Revenue.
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2012 (5) TMI 550
Rectification of Mistake - Admissibility of Cenvat credit - Cenvat credit on welding electrodes used in repair and maintenance of machinery - Held that:- In the matter of admissibility of Cenvat credit there cannot be any difference between Welding Electrodes and Acetylene Gas and Oxygen Gas because the first item is used in electrical welding and the other two items are used in gas welding. The nature of welding cannot make a difference to admissibility of Cenvat credit. So we modify the order to allow Cenvat credit on Acetylene Gas and Oxygen Gas also - words “captive mines” used in the said decisions have to be understood to mean assessee’s own mines rather than mine around one factory of the assessee. The mines by its very nature cannot be inside the factory. So credit cannot be denied for the reason that mines were situated 3 to 4 Kms away from the factory - So we hold that Cenvat credit on explosives used in mines is to be allowed in this case - Decided in favour of assessee.
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2012 (5) TMI 549
Exemption under Notification No. 67/95-C.E., dated 16-3-1995 - Penalty - Misdeclaration - Suppression of facts - Intention to evade duty - Whether the appellants are entitled for the benefit of Notification No. 67/95-C.E., dated 16-3-1995 - Held that:- The Notification provides exemption to inputs manufactured in a factory and used within the factory of production in or in relation to the manufacture of the final product provided that the benefit of Notification is not available to the inputs used in or in relation to the manufacture of final product which are exempt from the whole of the duty of excise or are chargeable to nil rate of duty. - Appellants are clearing the pouches of coolant with the engine oil GTC-X Extra. The coolant manufactured in the factory is not an input used in the manufacture of GTX Extra, as the same has been supplied in pouches along with the GTX Extra. In these circumstances, we find no infirmity in the order whereby the demand is confirmed after denying the benefit of the Notification.
Appellant filed a declaration knowing well that the coolant is not used as input in the further manufacture of excisable goods. Therefore, there is a clear intention to evade payment of duty. In view of this, we find that the lower appellate authority has rightly imposed the penalty also - Decided against assessee.
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2012 (5) TMI 548
Deemed credit - Notification No. 29/96-C.E. (N.T.) - Held that:- Admittedly the credit was availed in terms of Notification No. 29/96-C.E. (N.T.) which was rescinded vide Notification No. 24/2000-C.E. (N.T.), dated 1-4-2000. With the rescinding of the Notification, the credit availed in terms of earlier Notification also lapsed. The appellant was not covered under the subsequent Notification issued under Rule 57A of Central Excuse Rules, 2002 as they were working under compounded levy scheme. As such I hold that the appellant was not entitled to carry forward the balance credit of Rs. 29,352/-. Accordingly I confirm the same. However, in respect of penalty of Rs. 2,000/-, I find that this is not the case involving any mala fide - Decided in favour of assessee.
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2012 (5) TMI 547
Valuation of goods - Total consideration amount included erection and commissioning - Held that:- respondent entered into two different contracts, one is for supply of DG sets and the other is for installation/erection and commissioning at the customer’s site. The respondent was discharging duty on the DG sets at the time of clearance from the factory. As installation/erection and commissioning at customer’s site was under the separate contract, therefore we find no infirmity in the impugned order and it cannot be considered towards the assessable value of the DG sets - Decided against Revenue.
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2012 (5) TMI 546
CENVAT Credit - Nexus with manufacturing activity - Held that:- Further, subsequently in the case of Ultratech Cement Ltd. [2010 (10) TMI 13 - BOMBAY HIGH COURT], Hon'ble High Court of Bombay after considering the decision of Hon'ble Supreme Court in the case of Maruti Suzuki Ltd. [2009 (8) TMI 14 - SUPREME COURT], has come to the conclusion that while deciding the admissibility of CENVAT Credit of Service Tax paid, the decision of Hon'ble Supreme Court in the case of Maruti Suzuki Ltd. would not be applicable. Further, it was submitted on behalf of the respondent that Hon'ble High Court of Karnataka in the case of CCE Bangalore Vs. Stanzen Toyotetsu India (P) Ltd. [2011 (4) TMI 201 - KARNATAKA HIGH COURT], has held that Group Health Insurance Policy, even though a welfare measure, the Service Tax paid on such service, would be admissible as CENVAT Credit - Decided against Revenue.
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2012 (5) TMI 545
CENVAT Credit - Non maintenance of separate accounts - Whether an assessee is required to maintain separate account when goods are supplied to SEZ developers and no duty is paid - Held that:- in the case of SEZ developers also, an assessee need not maintain separate accounts and is covered by the provisions of Rule 6(6)(i) of CENVAT Credit Rules, 2002 - Following decision of Sujana Metal Products Ltd. Vs CCE Hyderabad [2011 (9) TMI 724 - CESTAT, BANGALORE] and in the case of Sobha Developers Ltd. Vs. CCE Bangalore [2011 (6) TMI 394 - CESTAT, BANGALORE] - Decided against Revenue.
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2012 (5) TMI 544
Duty demand - Introduction of new scheme of levy and collection of excise duty on steel rolling mills on the basis of their annual production capacity under Section 3A - Commissioner after considering the parameters furnished by the appellant fixed the APC and duty thereof - he appellant working under the APC did not discharge their duty liability as fixed by the Commissioner from time to time and on the fixed dates as prescribed under the Rules and the Notification issued there under during the period September 1997 to March 2000 - Held that:- after the omission of Rules 96ZQ, 96ZP and 96ZO of Central Excise Rules, 1944 with effect from 1-3-2001, no proceeding could have been initiated there under and after omission of Section 3A of the Central Excise Act, 1944 with effect from 11-5-2001 without any saving clause, no pending proceedings under the said rules which had not been concluded before the omission came into effect, could be concluded thereafter - impugned order is not sustainable and has to be set-aside since in this case, the order-in-original was passed on 30-10-2003 i.e. after the Section 3A of Central Excise Act, 1944 was amended - Following decision of KRISHNA PROCESSORS Versus UNION OF INDIA [2012 (11) TMI 954 - GUJARAT HIGH COURT] - Decided in favour of assessee.
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2012 (5) TMI 543
CENVAT Credit - In the remaking process the respondents scrapped some quantity of rejected BOPP films by cutting and without subjecting to any process cleared the said scrapped goods for further making of granules and cleared the granules at NIL rate of duty under Notification No. 4/2006-CE dated 1.3.06 as amended - Held that:- As followed by the decision in assessee's own previous case [2010 (1) TMI 1105 - CESTAT AHMEDABAD] procedure followed by the respondent for payment of duty is correct. The appeal filed by the Revenue is on the ground that this order has not been accepted and an appeal has been filed. Since the issue was considered in detail by this Tribunal and the issue involved in the present appeal is same and only the period is different and there is no stay against the order of this Tribunal by the Hon’ble High Court of Gujarat - Decided against Revenue.
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2012 (5) TMI 542
Penalty – Delay in duty payment – Whether penalty imposable under Rule 27 or under Rule 25 of the Central Excise Rules, 2002 - Held that:- there is some variation in the proportionality of penalty imposed in the two cases considering the amounts involved and period involved - In this case the defaulted amount is Rs. 27,29,823/- for a period of 12 days. So I reduce the penalty to Rs. 15000 - Decided partly in favour of assessee.
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2012 (5) TMI 541
Penalty - Non export of goods - Malafide intention of assessee - Held that:- Duty stands confirmed as not contested. Penalty of identical amount also stands confirmed. We, further note that there is admittedly violation of the provision of the policy in as much as the appellants have not exported 1045 pairs of shoes. As such, they are liable to penalty. In view of the law declared by the Hon’ble Supreme Court in the case of Dharmendra Textiles [2008 (9) TMI 52 - SUPREME COURT], we uphold the imposition of penalty to the extent of 100%. Further penalty of identical amount also stands confirmed. However, the appellants are given an option to pay 25% of the same within a period of 30 days from receipt of the present order, in terms of proviso to Section 114A of the Customs Act, 1962, in which case the penalty shall stand reduced to 25% - Decided partly in favour of assessee.
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2012 (5) TMI 540
Manufacturing both dutiable as well as exempted goods - Non Maintenance of separate account for inputs/input service credit for dutiable as well as exempted goods - Held that:- applicant has done trading activity and they have not undertaken any activity of manufacturing of the exempted goods. Therefore, prima facie, the applicants are not required to reverse 10% of the value of their clearance of the traded goods. Therefore, the applicants have made out a case for 100% waiver of pre-deposit of the amount of duty, interest and penalties imposed on the main applicant and the co-applicant - Stay granted.
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2012 (5) TMI 539
Disallowance of CENVAT Credit - commission paid to consignment agent – Held that:- services used for “sales promotion” is specifically included in the definition of input services as defined under Rule 2(l) of Cenvat Credit Rules, 2004. Therefore, there is no merit in the case made out by Revenue. Therefore after waiving the requirement of pre-deposit of dues for admission of appeal the appeal itself is taken up for disposal and the same is allowed following the precedent decision in favour of the appellant in their own case [2012 (10) TMI 762 - CESTAT, NEW DELHI] - Decided in favour of assessee.
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2012 (5) TMI 538
CENVAT Credit - Customs House Agent service - Board vide No.97/8/2007-ST dated 23.08.07 - Held that:- ommissioner (Appeals) in his order has correctly analysed the facts and has come to the right conclusion based on the decision of this Tribunal cited by him and the circular relied upon by him. Further, the ld. counsel for the respondent also relied upon the decision of this Tribunal in the case of Rolex Rings Pvt. Ltd. [2008 (2) TMI 770 - CESTAT, AHMEDABAD] and MTR Foods Ltd. [2011 (1) TMI 143 - CESTAT, BANGALORE]. I find that all the Tribunal decisions cited are applicable to the facts of this case and the Board’s circular as observed by the appellate authority also supports the case of the respondent - Decided against Revenue.
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2012 (5) TMI 537
Duty demand - Ex parte order - Requested documents not supplied - Held that:- Perusal of the impugned order clearly shows that the same is an ex parte order passed without supplying the audit report and other documents requested by the Appellant and without hearing the Appellant in person while Section 14A(5) provides that the assessee shall be given an opportunity of being heard in respect of any material gathered on the basis of the Audit and proposed to be utilized in any proceedings under the Act and the Rules made thereunder. The impugned order is, therefore, set aside and the matter is remanded to the original adjudicating authority for de novo adjudication after supplying the audit report and other required documents and granting opportunity of personal hearing - Decided in favour of assessee.
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