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2010 (12) TMI 1146
Whether professional ethics requires that a lawyer cannot refuse a brief, provided a client is willing to pay his fee, and the lawyer is not otherwise engaged?
Whether the action of any Bar Association in passing such a resolution that none of its members will appear for a particular accused, whether on the ground that he is a policeman or on the ground that he is a suspected terrorist, rapist, mass murderer, etc. is against all norms of the Constitution, the Statute and professional ethics?
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2010 (12) TMI 1145
Issues involved: Denial of input service credit u/s Certification of Pollution Level service.
Summary:
Issue 1: Denial of input service credit u/s Certification of Pollution Level service
The appellant appealed against the denial of input service credit by lower authorities on the grounds that the service availed by them, Certification of Pollution Level, was deemed non-taxable during the period in question. The appellant, a cement manufacturer, contended that they were entitled to the credit under Rule 3 of Cenvat Credit Rules, 2004, as they had paid service tax for the service and received invoices from the service provider. The appellant's advocate cited precedents such as CCE Chennai vs. Caborandum Universal Ltd. and Koch-Glitsch India Ltd. vs. CCE & Cus., Vadodara-I to support their claim that if the eligibility of credit is not questioned by the service provider, the appellant should not be denied the input service credit.
Issue 2: Adjudication and arguments
The appellant's advocate argued that the appellant had paid service tax on the services received and was entitled to take input service credit as per the rules. On the other hand, the Departmental Representative contended that since the service in question was not taxable, the denial of credit was justified under Rule 3 of CENVAT Credit Rules, 2004.
Judgment
After considering the arguments from both sides, the Tribunal found that the appellant had indeed paid service tax on the services and was entitled to take input service credit, regardless of the taxability of the service at the end of the service provider. Citing the precedent of Caborandum Universal Ltd., the Tribunal set aside the impugned order and allowed the appeal with consequential relief.
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2010 (12) TMI 1144
Interest- The respondent had been paying the duty in terms of the value arrived at on the date of payment of duty. However, the appellant, by contending that there, was a delay in payment of duty on account of variation in price, issued a show cause notice by demanding interest and penalty on the delayed payment of duty for the period from 1.4.2003 to 31.3.2004. Adjudicating authority and Commissioner (Appeals) uphold the demand. The respondents thereafter preferred an appeal before the tribunal which was allowed.
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2010 (12) TMI 1143
SSI Exemption – Brand name of another – Lawful consent and assignment – exemption under notification not apply to the specified goods bearing a brand name or trade name whether registered or not of another person except in the cases specified - appellants' case does not fall in any of the exception.
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2010 (12) TMI 1142
Issues Involved:
1. Amendment to the memorandum of appeal.
2. Waiver of pre-deposit and stay of recovery of adjudged dues.
3. Excisability of goods with 'Nil' rate of duty.
4. Quantum of duty payable on DTA clearances.
Summary:
1. Amendment to the Memorandum of Appeal:
The appellants sought an amendment to correct the erroneous amount of duty mentioned in the grounds of appeal from Rs. 64.14 crores to Rs. 24.46 lakhs. The Tribunal noted the lack of clarity in the amendment application and the absence of supporting affidavit, thus unable to entertain the application in its present form. The appellants were given liberty to take remedial steps.
2. Waiver of Pre-deposit and Stay of Recovery:
The appellants requested a waiver of pre-deposit and stay of recovery of adjudged dues totaling over Rs. 3.15 crores. They argued that similar demands for the period prior to 28-2-05 were dropped, leading them to believe bona fide that no duty was payable on DTA clearances post-28-2-05. They also cited financial hardships, supported by balance sheets and profit & loss accounts for the year ending 31-3-2009. The Tribunal, however, found no substantiation for the plea of financial hardships as the documents did not disclose the present financial position.
3. Excisability of Goods with 'Nil' Rate of Duty:
The appellants contended that fresh mushrooms were chargeable to 'Nil' rate of duty and thus not 'excisable' u/s 2(d) and Sec. 3 of the Central Excise Act. The Tribunal, referencing case law, held that goods with 'Nil' rate of duty are still 'excisable' within the meaning of Sec. 2(d) and Sec. 3 of the Act. The Tribunal noted that the appellant-unit was a running EOU during the material period, and their DTA clearances were covered by the proviso to Sec. 3(1) of the Act, making them liable to pay duty.
4. Quantum of Duty Payable on DTA Clearances:
The appellants had considered various options in their replies to the show-cause notices, indicating an inclination to pay duty of around Rs. 1.25 crores based on cum-duty value. The Tribunal directed the appellants to pre-deposit Rs. 1.25 crores within 4 weeks, in the absence of substantiated financial hardships.
Conclusion:
The Tribunal directed the appellants to pre-deposit Rs. 1.25 crores and report compliance by 7-2-2011. The plea of financial hardships was not substantiated, and the goods were deemed excisable despite a 'Nil' rate of duty. The amendment application was not entertained due to lack of clarity and supporting affidavit.
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2010 (12) TMI 1141
Valuation - capacity based production - penalty - Held that: - The writ petition of the assessees are allowed and impugned provisions in Rules 96(ZO), (ZP) and (ZQ) permitting minimum penalty for delay in payment, without any discretion and without having regard to extent and circumstances for delay are held to be ultra vires the Act and the Constitution
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2010 (12) TMI 1140
Issues Involved:
1. Misdeclaration of goods.
2. Valuation of imported goods.
3. Confiscation of goods.
4. Imposition of penalties.
5. Liability of legal heirs for penalties.
Detailed Analysis:
1. Misdeclaration of Goods:
The appellants contested that they did not misdeclare the goods imported as postal parcels. They argued that the foreign supplier correctly described the goods by their chemical names for parcels Nos. 10568 and 10690 and that the misdescription of parcel No. 10963 as '2-Nitro Imidazole' was due to a clerical error. They provided the supplier's invoices with the correct description and value when requested. The Tribunal noted that two of the three parcels were correctly described, while the third parcel had a misdescription. The adjudicating authority needs to re-examine whether the appellants misdeclared the description of the goods, especially considering the customs procedures and regulations.
2. Valuation of Imported Goods:
The appellants argued that the declared value of US $ 6,000 per kg, based on the supplier's invoice, should be accepted as the transaction value. The adjudicating authority enhanced the value without providing valid reasons for rejecting the transaction value, which contradicts the apex court's judgment in Eicher Tractors Limited (2000 (122) E.L.T. 321 (S.C.)). The Tribunal directed that the value of the goods should be reassessed afresh, giving the appellants an opportunity to be heard, and the reasons for rejecting the transaction value should be clearly stated.
3. Confiscation of Goods:
The Commissioner ordered the confiscation of the goods under Section 111(m) of the Customs Act due to misdeclaration of description and value. The Tribunal found that there was no misdescription for parcels Nos. 10568 and 10690, but there was a misdescription for parcel No. 10963. The adjudicating authority needs to re-examine the confiscability of the goods under Section 111(m) in light of the correct description and value provided by the appellants.
4. Imposition of Penalties:
The Commissioner imposed penalties on LCPL and its Director under Section 112(a) of the Customs Act. The Tribunal noted that the penalties were based on the findings of misdeclaration and incorrect valuation, which need to be re-examined. The penalties should be reconsidered after the reassessment of the description and value of the goods.
5. Liability of Legal Heirs for Penalties:
The Tribunal mentioned that the legal heirs of the deceased Director, N.P. Jajodia, took over the prosecution of the appeal. The adjudicating authority should examine whether the legal heirs can be held liable for penalties under Section 112 of the Customs Act, in case the deceased is found liable for such penalties.
Conclusion:
The Tribunal set aside the impugned order and remanded the case to the Commissioner of Customs for a fresh examination of all issues. The Commissioner should pass a speaking order after re-evaluating the description, value, confiscability, and penalties, giving the appellants a reasonable opportunity to be heard. The question of the legal heirs' liability for penalties should also be addressed. Both appeals were allowed by way of remand.
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2010 (12) TMI 1139
Issues Involved:
1. Alleged undervaluation of goods by the assessee.
2. Validity of evidence (slips, chits, and statements) used to determine undervaluation.
3. Applicability of extended period for issuing show-cause notice.
4. Determination of transaction value and applicability of best judgment assessment.
5. Legality of penalties imposed on the assessee and individuals.
Issue-wise Detailed Analysis:
1. Alleged Undervaluation of Goods by the Assessee:
The assessee, part of the BA Group, was accused of undervaluing its products (plywood, block boards) by invoicing lower prices while collecting higher actual sale prices in cash. Evidence included slips recovered from a dealer, which showed discrepancies between invoiced and actual prices. Statements from employees and dealers corroborated the practice of collecting additional amounts in cash. The Commissioner confirmed a demand of Rs. 49,73,107/- in differential duty for clearances made from 7/2001 to 3/2004, along with applicable interest and penalties.
2. Validity of Evidence:
The assessee challenged the reliance on slips and chits, arguing they were not primary evidence and the statements were obtained under duress and retracted during cross-examination. However, the Tribunal found that the initial statements were valid as they were not retracted promptly, and the statements were corroborated by documentary evidence. The Tribunal held that statements recorded under Section 14 of the Central Excise Act by Central Excise Officers, who are not police officers, are valid evidence.
3. Applicability of Extended Period for Issuing Show-Cause Notice:
The assessee argued that the demand was time-barred as the show-cause notice was issued after more than two years from the date of knowledge of the alleged evasion. The Tribunal referred to Section 11A, which allows a five-year period for issuing notices in cases of fraud, collusion, or suppression of facts. It cited precedents where the relevant date was not the date of acquiring knowledge by the department. Consequently, the Tribunal upheld the invocation of the extended period for issuing the show-cause notice.
4. Determination of Transaction Value and Applicability of Best Judgment Assessment:
The Tribunal agreed with the assessee that the value for duty purposes should be the transaction value for each clearance, as per Section 4 of the Central Excise Act. It rejected the Commissioner's method of enhancing the declared value by a uniform percentage (49.32%) across all clearances, as it introduced arbitrariness. The Tribunal cited the case of CERA Boards & Doors, which emphasized determining the transaction value based on each transaction for the period after 1-7-2000. The Tribunal found that applying a percentage to invoice values to determine duty was legally inappropriate.
5. Legality of Penalties Imposed:
The Tribunal found that the penalties imposed were arbitrary and not sustainable without establishing the guilt of the appellants beyond reasonable doubt. It emphasized that penalties could only be imposed if the alleged offences and allegations were proven. The Tribunal referred to several judicial decisions supporting this view and concluded that the Commissioner's order imposing penalties was not justified.
Conclusion:
The Tribunal set aside the impugned order and remanded the case for a fresh decision by the Original Authority regarding the duty liability and penalties. It instructed that the penal liability of individuals should also be reconsidered in de novo proceedings, following principles of natural justice. The appeals were disposed of accordingly.
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2010 (12) TMI 1138
Issues: Appeal against confirmation of duty and penalty imposition for shortage of inputs and finished products.
Analysis:
1. Confirmation of Demand and Penalty Imposition: The appeal was filed against the order of the Commissioner (Appeals) dated 25-2-2009, confirming the demand of duty and penalty imposition. The Central Excise officers found a substantial shortage of inputs and finished products compared to the statutory records. The duty on the shortfall was paid, and a show cause notice was issued proposing confirmation of duty and penalties. The original authority confirmed the duty demand and imposed a penalty under Rule 25 of the Central Excise Rules, 2002, and Rule 15 of Cenvat Credit Rules, 2004. The Commissioner (Appeals) upheld the original authority's decision, although Section 11AC was not invoked despite being mentioned in the show cause notice. No appeal was filed by the department against the original authority's order before the Commissioner (Appeals).
2. Arguments and Submissions: The advocate for the appellants argued that the shortage was merely due to improper maintenance of accounts and not clandestine removal. They acknowledged the duty liability but contested the harshness of the penalty. On the other hand, the SDR reiterated the findings of the lower authorities.
3. Judgment and Reasoning: The Member (T) carefully considered both sides' submissions. The substantial shortage of raw materials and finished products was noted, with unconvincing explanations provided. While there was no evidence of clandestine removal, the failure to account for inputs and final products attracted penalties under Rule 15 of the Cenvat Credit Rules and Rule 25(1)(b) of the Central Excise Rules, 2002. Despite the reduction of penalties due to the absence of evidence of clandestine removal, the impugned order confirming the duty demand and penalties was upheld. The penalty was reduced from Rs. 2,80,198 to Rs. 75,000 based on the facts and circumstances of the case.
In conclusion, the judgment maintained the confirmation of duty demand and penalties for the shortage of inputs and finished products, emphasizing the strict obligation of the appellants to account for such items. The reduction in penalty was granted due to the absence of evidence of clandestine removal, but the overall decision of upholding the original authority's order was affirmed.
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2010 (12) TMI 1137
Issues: Rectification of mistake in the order related to penalty reduction under Section 11AC of the Central Excise Act, 1944.
In this case, the Tribunal received an application from the Revenue seeking rectification of a previous order where it was stated that if the appellant paid duty, interest, and 25% of the duty amount towards penalty within 30 days, the penalty would be reduced to 25% of the duty as per Section 11AC of the Central Excise Act. The Revenue argued that the original order was issued in 1998, before the introduction of the provision for reduced penalty within 30 days. However, the appellant pointed out Explanation-I of Section 11AC, which clarified that the provision also applies to cases where the duty determination order relates to notices issued before the introduction of the new Section 11A in 2000. The Tribunal had upheld the duty demand in an order from 2006, which falls under the new Section 11AC. Therefore, the Tribunal concluded that the explanation covers the matter, and there was no mistake in the original order to rectify. The duty determination under Section 11A(2) was done after 2000, making the explanation to Section 11AC applicable. Consequently, the Tribunal found no merit in the Revenue's application for rectification of mistake and rejected it.
This judgment clarifies the application of Section 11AC of the Central Excise Act, 1944, regarding the reduction of penalties if payment is made within 30 days of the order. The Tribunal's analysis focused on the timing of the duty determination order, emphasizing that even if the original notice was issued before the new provision in 2000, if the duty determination occurred after 2000, the new Section 11AC would apply. The Tribunal's interpretation of the explanation to Section 11AC highlights the importance of the timing of duty determination in determining the applicability of penalty reduction provisions. This decision provides clarity on the retrospective application of penalty provisions in cases where duty determination orders are issued before the introduction of relevant statutory amendments.
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2010 (12) TMI 1136
Issues Involved:
1. Duty on acetoning charges.
2. Duty on repair and handling charges.
3. Bar of limitation.
4. Imposition of personal penalties under Rule 209A and Rule 210.
5. Imposition of penalty under Section 11AC and Rule 173Q.
6. Claim regarding Cenvat credit.
Issue-wise Detailed Analysis:
1. Duty on Acetoning Charges:
The appellants were engaged in the manufacture of dissolved acetylene gas, which required acetone as a solvent to keep the gas in a dissolved condition. The authorities concluded that the process of acetoning is essential to the manufacturing process of acetylene gas and, therefore, the cost of acetoning should be included in the assessable value of the goods. The Tribunal referenced the case of *Best Liquifiable Gases Ltd.*, which held that acetoning charges should be part of the assessable value because acetone is necessary for the safe packaging and marketing of acetylene gas. The appellants' argument that acetone is not consumed by customers and thus should not be included in the assessable value was rejected, as the acetone plays a crucial role in the manufacturing process until the product is cleared for customer use.
2. Duty on Repair and Handling Charges:
The appellants were found to have included the cost of acetoning in the repair and handling charges for certain customers, thereby avoiding its inclusion in the assessable value. The Tribunal noted that the appellants' modus operandi was confirmed by the statements of company officers and was not disputed in their reply to the show cause notice. The authorities concluded that there was clear suppression of facts with the intention to evade payment of proper duty, justifying the inclusion of these charges in the assessable value.
3. Bar of Limitation:
The appellants argued that the demand was time-barred as the show cause notice was issued in January 2000 for the period from February 1995 to November 1999. However, the authorities found that the appellants had not disclosed relevant facts to the department, which justified the invocation of the extended period of limitation. The Tribunal upheld this finding, noting that the appellants had not rebutted the evidence of suppression of facts.
4. Imposition of Personal Penalties under Rule 209A and Rule 210:
The Tribunal found that the authorities did not establish that the company officers had knowledge or reason to believe that the excisable goods were liable for confiscation, which is a requirement under Rule 209A. Thus, the personal penalties under Rule 209A were set aside. However, the Tribunal upheld the penalties under Rule 210, which applies to any breach of the rules, regardless of whether the individual is the assessee. The penalties under Rule 210 were reduced to one thousand rupees each.
5. Imposition of Penalty under Section 11AC and Rule 173Q:
The Tribunal disagreed with the view that combined penalties under Section 11AC and Rule 173Q were impermissible. It held that penalties could be imposed under both provisions for defaults occurring before and after the introduction of Section 11AC on 28-9-1996. The Tribunal found no infirmity in the imposition of penalties under both provisions, provided they corresponded to the relevant periods.
6. Claim Regarding Cenvat Credit:
The Tribunal noted that the claim for Cenvat credit must be made in accordance with the provisions of law before the competent authority. It was deemed premature to address this issue in the judgment, but the appellants were not precluded from pursuing their claim through proper channels.
Conclusion:
The appeals by the individual appellants regarding personal penalties under Rule 209A were successful, but the penalties under Rule 210 were upheld and reduced to one thousand rupees each. The appeal by the appellant company was dismissed, affirming the inclusion of acetoning and repair and handling charges in the assessable value, the invocation of the extended period of limitation, and the imposition of penalties under Section 11AC and Rule 173Q.
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2010 (12) TMI 1135
Issues: Interpretation of exemption notification under Notification No. 21/2002-Cus., compliance with terms of undertaking, pre-deposit requirement, use of imported machinery for road construction, possession of machinery, offer to pre-deposit amount, post-importation conditions.
In this case, the appellants had imported a stone crushing plant and a hot mixing plant availing exemption under Notification No. 21/2002-Cus., dated 1-3-2002, Serial No. 230. The department alleged that the machinery was not used for the specified purposes and one of the machines was parted with against the terms of the undertaking. The appellants argued that the machinery was used for road construction under contracts with government authorities, fulfilling the main purpose of the notification. They also offered to pre-deposit a portion of the duty demand. The Tribunal noted that the notification had pre-importation conditions requiring an undertaking for exclusive use in road construction and no post-importation conditions to ensure compliance. The appellants claimed the machinery was used for public sector road construction, and the department provided no evidence to the contrary. The Tribunal found the offer to pre-deposit an amount of &8377; 22 lakhs acceptable, considering one machine was not in their possession. They directed the pre-deposit within 8 weeks, with the balance amount waived during the appeal's pendency, subject to compliance. Compliance was to be reported by 11-2-2011.
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2010 (12) TMI 1134
The Appellate Tribunal CESTAT CHENNAI allowed discounts offered by assessees to consignment agents. The discounts were disallowed by the adjudicating authority but deemed permissible as the consignment agent was the buyer/customer. The Tribunal upheld the lower appellate authority's decision, stating the consignment agent was not related to the manufacturer/assessee.
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2010 (12) TMI 1133
Issues: Condonation of Delay in Filing Appeal
Analysis:
1. The main issue in this case is the condonation of a 40-month delay in filing an appeal. The appellant had filed a Revision Application before the Joint Secretary of Government of India within the limitation period for filing an appeal. The Revision Application was dismissed, and the appellants filed the present appeal after a significant delay.
2. The Tribunal noted that the impugned order was communicated to the appellants on 6th April, 2007, and the Revisionary Authority's order was received on 11th April, 2010. The normal deadline for filing the appeal would have been 4th July, 2010. However, considering the timeline of events, the appellants had until 2nd May, 2010, to file the appeal within the limitation period after the dismissal of the Revision Application.
3. Despite having sufficient time to file the appeal within the limitation period, the appellants only filed it on 1st July, 2010. The Tribunal observed that there was no justification provided for the delay beyond 2nd May, 2010. Without a satisfactory explanation, the Tribunal held that there was no sufficient cause disclosed for the delay, leading to the rejection of the application for condonation of delay.
In conclusion, the Tribunal rejected the application for condonation of delay in filing the appeal due to the lack of a justifiable reason for the delay beyond the period allowed after the dismissal of the Revision Application.
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2010 (12) TMI 1132
Issues Involved: Interpretation of statutory provisions regarding the incorporation of penal provisions from one Act into another Act.
Analysis:
1. The High Court was tasked with determining whether the provisions of sub-section (3) of Section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957, incorporated by reference the provisions of the Central Excise Act, 1944, concerning confiscation of goods, offenses, and penalties. The Court directed the Tribunal to provide a statement of the case under the Central Excise Act, 1944 for this purpose.
2. Despite the respondent not being served, the Court proceeded with the hearing due to the matter being conclusively settled against the Revenue by a Supreme Court decision. The Court considered the issue resolved by a previous Supreme Court judgment and the relevance of penal provisions under the Additional Duties of Excise Act.
3. The Revenue argued that penalties would be attracted for non-payment of duty under the Additional Duties of Excise Act based on a Constitution Bench decision. The Tribunal had relied on a Delhi High Court decision, which the Revenue contested, emphasizing the applicability of penal provisions from the Central Excises and Salt Act to the levy and collection of duty under the Additional Duties of Excise Act.
4. The Apex Court's decision in Collector of Central Excise, Ahmedabad v. Orient Fabrics Pvt. Ltd. clarified that the breach of the Additional Duties of Excise Act did not entail penalties or confiscation of goods. The Court highlighted the necessity of a clear legal authority for imposing penalties, citing Article 265 of the Constitution.
5. The Court differentiated the issues in the present case from those in Ujagar Prints v. Union of India, emphasizing that the controversy revolved around the incorporation of penal provisions from the Central Excise Act into the Additional Duties of Excise Act. The decision in Orient Fabrics case directly settled the matter at hand.
6. Ultimately, the Court answered the reference in the negative, stating that the provision of sub-section (3) of Section 3 of the Additional Duties of Excise Act did not incorporate the penal provisions of the Central Excise Act. The judgment was based on the precedent set by the Apex Court in the Orient Fabrics case, concluding that penalties were not automatically applicable under the Additional Duties of Excise Act.
7. The reference was disposed of in line with the Apex Court's decision, affirming that the controversy in the present case was conclusively resolved by the Orient Fabrics judgment, which clarified the absence of penal provisions in the Additional Duties of Excise Act.
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2010 (12) TMI 1131
Suspension of CHA licence - certain violations noticed on the part of the CHA in connection with the filing of 10 shipping bills, all of which were filed in December, 2008, some on behalf of one exporter and the rest on behalf of another exporter - Held that: - we reject the proposition that the action taken by the Commissioner under Regulation 20(2) is an administrative action. A Larger Bench of this Tribunal had held long ago that the suspension of CHA licence by a Commissioner of Customs (licensing authority), pending investigations against the CHA, was an action with civil consequences for the CHA and hence of a quasi-judicial nature. The larger bench also held that a CHA, whose licence was suspended with immediate effect without hearing, was to be given post-decisional hearing in accordance with the rule of natural justice. It is this view which was accepted by the legislative authority and incorporated in Regulation 20 through the amendment under reference. Therefore, it cannot be gainsaid that the suspension order of the Commissioner is a quasi-judicial product rather than administrative - application allowed - decided in favor of applicant.
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2010 (12) TMI 1130
Issues involved: Whether the assessee is entitled to avail input credit on the basis of supplementary invoice issued by their unit.
Summary:
The case involved a dispute regarding the entitlement of the assessee to claim input credit based on a supplementary invoice issued by their unit. The facts revealed that goods were transferred from Unit no. 2 to Unit no. 1 on the basis of an invoice calculated as per CAS 4. Subsequently, when the actual cost of production was determined, the differential duty was paid and supplementary invoices were issued to Unit no. 1. The adjudicating authority initially denied the input credit claimed by the respondent, but the lower appellate authority allowed it citing no suppression of facts and relying on a judgment of the Hon'ble Karnataka High Court. The revenue appealed against this decision.
The lower appellate authority held that as there was no sale involved, but rather a transfer of goods between units, the respondent was entitled to claim input credit as per Rule 9(1)(b) of the Cenvat Credit Rules, 2004. The revenue contended that the impugned order should be set aside.
The respondent's counsel argued that the case was similar to a decision of the Karnataka High Court and therefore the impugned order should be upheld. After considering the submissions, the Member (J) found that the key question was whether the respondent could avail input credit on the supplementary invoice. Referring to the Karnataka High Court decision, it was established that in cases of suppression of facts, the assessee cannot claim input credit on supplementary invoices. Since there was no specific allegation of suppression against the respondent in this case, they were deemed entitled to avail input credit on the supplementary invoice. Consequently, the impugned order was upheld, and the Revenue's appeal was rejected.
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2010 (12) TMI 1129
Issues:
1. Stay of operation of the impugned order passed by the Commissioner (Appeals).
2. Appeal against the appellate Commissioner's order granting a refund to the respondent.
3. Dispute regarding the duty liability on scrap generated at the job worker's premises.
4. Contestation of demand and request for refund by the respondent.
5. Interpretation of whether the amount deposited was duty or a mere deposit.
6. Claim for refund under Section 11B of the Central Excise Act.
7. Awareness of statutory procedures by the respondent.
Analysis:
1. The application filed by the Revenue sought a stay on the operation of the order passed by the Commissioner (Appeals). However, the Tribunal decided to proceed with the appeal itself rather than granting a stay, indicating that the appeal could be finally disposed of at that stage.
2. The appeal by the Revenue was directed against the appellate Commissioner's order granting a refund to the respondent. The dispute arose from the respondent paying an amount towards Central Excise duty and education cess on scrap generated at their job worker's premises, which was disposed of without duty payment. The respondent later admitted the duty liability and made a payment, leading to a subsequent show cause notice proposing demand confirmation. The original authority dropped the demand but refused the refund request, prompting the appeal by the Revenue.
3. The main grievance in the appeal was against the finding that the respondent had specifically claimed a refund and that the amount deposited was not considered duty. The Tribunal analyzed the submissions and concluded that the respondent had accepted duty liability for the scrap, making the amount paid towards duty and cess. The Tribunal found that the respondent's claim for refund was premature and should have followed the prescribed procedure under Section 11B of the Central Excise Act.
4. The Tribunal emphasized that the respondent's payment was for Central Excise duty and education cess, and any claim for refund should have adhered to the statutory scheme. The lower appellate authority's decision to allow the refund was deemed beyond the legal framework, considering the respondent's longstanding involvement in manufacturing activities.
5. Ultimately, the Tribunal set aside the impugned order and allowed the appeal, highlighting the necessity for adhering to the prescribed procedures for claiming refunds under the Central Excise Act.
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2010 (12) TMI 1128
Issues involved: Appeal against denial of refund claim of excess duty paid on short shipment of parts.
Issue 1: Inspection of short shipment not in presence of authorities
- Appellant imported capital goods, left out 2 boxes, later shipped with verification.
- Refund claim rejected due to lack of inspection in presence of authorities.
- Appellant argues inspection not necessary, cites precedent Commissioner of Customs v. Manipal Power Press.
- Revenue cites Guindy Machine Tools Ltd. case, claims short shipment after customs charge not valid.
- Tribunal refers to Board Circular allowing refund for excess duty paid, holds refund claim maintainable.
Issue 2: Challenge to assessment of original Bill of Entry
- Appellant's claim also rejected for not challenging assessment of Bill of Entry.
- Appellant relies on Board of Trustees of Port of Mormugao case.
- Revenue cites Priya Blue Industries Ltd. case, states refund not maintainable without challenging assessment.
- Tribunal finds appellant proved short supply, duty paid on short shipped goods, deems refund claim valid.
- Tribunal refers to Board Circular, holds refund claim maintainable.
Conclusion: Impugned order set aside, appeal allowed for refund claim with consequential relief.
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2010 (12) TMI 1127
The appellate tribunal in Chennai annulled an order due to a violation of natural justice, directing a re-hearing of the case. The appeal against this decision was rejected, benefiting the Revenue. The cross-objection filed by the respondents was disposed of.
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9911796707
