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Showing 241 to 260 of 686 Records
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2009 (6) TMI 788
Issues:
Waiver of penalties under Section 11AC of the Central Excise Act based on suppression of facts with intent to evade payment of duty.
Analysis:
The judgment involved multiple applications/appeals against a common impugned order seeking waiver of penalties imposed under Section 11AC of the Central Excise Act. The applicants contended that the impugned order did not establish that they suppressed facts with intent to evade duty. They referenced the decision of the Hon'ble Supreme Court in the case of Dharamendra Textiles Processors v. Union of India and Union of India v. Rajasthan Spinning & Weaving Mills to argue that the adjudicating authority lacked discretion to impose a penalty lesser than the demand. The Revenue reiterated the findings of the Commissioner (Appeals).
Upon examination, the Tribunal found that the impugned order did not establish that the applicants suppressed facts with intent to evade duty. Citing the Supreme Court's decision in the case of Rajasthan Spinning & Weaving Mills, the Tribunal highlighted that penalty under Section 11AC is a punishment for deliberate deception by the assessee to evade duty. As there was no finding of deliberate intention to evade duty in the impugned order, the matter required reconsideration by the Commissioner (Appeals). Consequently, the Tribunal set aside the impugned order, waived the pre-deposit of penalties, and remanded the matters to the Commissioner (Appeals) for a fresh decision after providing both parties with an opportunity to be heard.
In conclusion, the judgment emphasized the importance of establishing deliberate intent to evade duty for the imposition of penalties under Section 11AC of the Central Excise Act. The Tribunal's decision to remand the matters for reconsideration by the Commissioner (Appeals) underscored the need for a clear finding regarding suppression of facts with intent to evade payment of duty before imposing penalties.
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2009 (6) TMI 787
Issues involved: Claim for refund of redemption fine and penalty, application of doctrine of unjust enrichment, interpretation of relevant legal provisions.
Summary:
The appellants claimed refund of redemption fine and penalty paid in excess, which was credited to Consumer Welfare Fund due to unjust enrichment. The appeals challenge the lower appellate authority's orders.
The appellant argues that unjust enrichment does not apply to refund of fine or penalty, citing precedents. The Respondent contends that unjust enrichment is based on equity and applies to all refund claims, relying on legal judgments. The Tribunal considers the Supreme Court's stance on unjust enrichment and holds that it can be invoked to deny refund if burden of proof is not met.
The Tribunal emphasizes that penal liabilities cannot be transferred to innocent parties, creating a presumption against passing on fine and penalty. The burden is on the department to prove otherwise. The matter is remanded to the original authority for fresh consideration based on equitable principles.
The Tribunal distinguishes the earlier Tribunal decision on unjust enrichment, stating that refund of fine and penalty falls within its purview. The appeals are allowed by remand to the original authority for further review.
In conclusion, the Tribunal sets aside lower authorities' orders and remands the appeals for reconsideration in light of the doctrine of unjust enrichment and equitable principles.
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2009 (6) TMI 786
Issues:
Penalty under Rule 25 of the Central Excise Rules, 2002 on the company and its Director, Manager, and Excise Clerk.
Analysis:
The judgment dealt with penalties imposed on a company and its officials under Rule 25 of the Central Excise Rules, 2002. The main charge against the company was the non-accounting of excisable goods for a few days, detected during a visit by Department officers. The original authority upheld this charge, ordering confiscation of goods and imposing penalties. The appellate authority reduced the fines and penalties imposed. The company argued that there was no legal requirement to maintain statutory records of production, claiming they maintained private records in a computerized manner. The company requested a waiver of pre-deposit and stay of recovery, citing financial hardships. On the other hand, the Department contended deliberate non-accounting of production, including clandestine clearance of goods. The tribunal found Rule 25 applicable without requiring mens rea for confiscation. The balance-sheet presented by the company was deemed insufficient to prove financial status. The tribunal directed the company to make an additional deposit under Section 35F of the Central Excise Act, with a compliance deadline. Compliance would result in a waiver of pre-deposit and stay of recovery for the penalties imposed on the company's officials.
This judgment analyzed the applicability of Rule 25 of the Central Excise Rules, 2002 concerning penalties on the company and its officials. The tribunal found the rule applicable based on the evidence presented, without requiring mens rea for confiscation. The company's argument regarding the maintenance of private records in a computerized manner was noted, but the tribunal found it insufficient to rebut the allegation of non-accounting of excisable goods. The tribunal emphasized the need for additional pre-deposit by the company under Section 35F of the Central Excise Act, separate from the earlier deposit made. Compliance with the directed deposit would lead to a waiver of pre-deposit and stay of recovery for the penalties imposed on the company's officials, considering the circumstances of the case and the evidence presented.
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2009 (6) TMI 785
Issues:
1. Service of notice at the correct address.
2. Timeliness of filing appeals.
3. Waiver of pre-deposit of duty and penalty.
4. Validity of penalty imposed on the Managing Director.
Issue 1: Service of Notice at the Correct Address
The appellant argued that the impugned order was not served at the correct address, as the company had shifted locations, and the last known address was not used for service. The Tribunal noted that the Srinagar colony address was available with the department, and the order was not tendered to the appropriate address. Therefore, the display of the order on the notice board was deemed insufficient. The Tribunal accepted the contention that there was no delay in filing the appeals, as they were within the statutory period of limitation.
Issue 2: Timeliness of Filing Appeals
The appellant contended that the appeals were filed in a timely manner, and any delay was due to caution. The Tribunal agreed that there was no delay in preferring the appeals and dismissed the applications for condonation of delay as unnecessary, given that the appeals were filed within the statutory period.
Issue 3: Waiver of Pre-Deposit of Duty and Penalty
The Tribunal considered the applications for waiver of pre-deposit of duty and penalty. It was observed that the appeals could be decided at that stage, and hence, the pre-deposit was waived with the consent of both parties. The case involved duty demand and penalty imposed on the Managing Director for alleged diversion of imported items. However, the JDGFT confirmed that the export obligations had been fulfilled, necessitating a fresh adjudication by the Commissioner based on new evidence.
Issue 4: Validity of Penalty Imposed on the Managing Director
Regarding the penalty imposed on the Managing Director under Section 112(a) of the Customs Act, the Tribunal found that the ingredients of the provision were not established against him. As the main company had not been penalized, the penalty on the Managing Director was set aside, as he could not be held liable for abetting an offense when the main offender had not been penalized. Therefore, the penalty imposed on the Managing Director was revoked, and his appeal was allowed.
This judgment highlights the importance of serving notices at the correct address, timely filing of appeals, the discretion to waive pre-deposit, and the necessity of establishing liability for penalties under relevant legal provisions.
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2009 (6) TMI 784
Issues:
Appeal against refund claim rejection by Revenue.
Analysis:
The case involved an appeal filed by the Revenue against the refund claim of the assessee, a sugar manufacturer, amounting to Rs. 5,27,736. The claim was based on the difference between the duty paid by the assessee and the amount received from the Food Corporation of India (FCI) for the sugar supplied under a release order. The Assistant Commissioner rejected the claim, but the Commissioner (Appeals) allowed it, leading to the Revenue's appeal.
The Commissioner (Appeals) noted that the entire quantity of sugar covered in the release order had been sold by the assessee to the FCI. The FCI paid duty at a lower rate than what the claimant had paid, resulting in excess payment by the assessee. The Commissioner (Appeals) found that the burden of the excess duty was borne by the claimant, as evidenced by a letter from the Assistant Manager (Sugar), Solapur.
The Tribunal examined the evidence presented. It was established that the assessee had borne the burden of the differential excise duty and had not passed it on to the buyers. In contrast, the Revenue failed to provide any positive evidence to show that the duty element was passed on to the buyers.
The assessee's billing practice was also scrutinized. It was revealed that the assessee presented bills to the FCI including quantities from different release orders, and payments were made accordingly by the FCI. The Tribunal emphasized that the difficulty in correlating payments received by the assessee should not be a reason to deny the legitimate claim.
Moreover, a letter from the FCI confirmed that the burden of the duty difference was borne by the factory and not passed on to anyone else. Given that the FCI is a Government of India Undertaking, the Tribunal deemed the letter as acceptable in the absence of contrary evidence.
Ultimately, the Tribunal upheld the Commissioner (Appeals)'s order, sustaining the refund claim of the assessee and dismissing the Revenue's appeal. Cross-objections were also disposed of accordingly.
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2009 (6) TMI 783
The Appellate Tribunal CESTAT, Mumbai ruled that the Revenue cannot claim interest under Section 18(3) of the Customs Act for duty provisionally assessed in February 2000 and finalized in December 2007. The case cited established that any levy incidental to finalization of provisional assessment is governed by the law in force at the time of provisional assessment. Since the provision for interest came into force after the assessment, the assessee is not liable to pay interest. The appeal of the Revenue was dismissed.
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2009 (6) TMI 782
Issues involved: Admissibility of refund claims u/s Customs Tariff Act, applicability of Supreme Court judgments, rectifiability u/s Customs Act, finalization of assessments, appealability of assessment orders.
Admissibility of refund claims: The appellant imported cooking coal and claimed no additional duty of customs (CVD) was leviable based on a Supreme Court judgment. The assessing authority provisionally assessed CVD, which was paid under protest. Subsequently, refund claims were filed and initially sanctioned. However, the appellate authority set aside the refund-sanctioning orders, leading to the present appeals by the assessee.
Applicability of Supreme Court judgments: The appellant argued that the assessing authority erred in not considering the Supreme Court's judgment in the TISCO case. The appellant contended that the assessments should have been rectified under Section 154 of the Customs Act, citing a Tribunal decision for support. The SDR referenced a Supreme Court judgment in a review petition, asserting that the assessments were not appealable, aligning with the ruling in Priya Blue Industries case.
Rectifiability u/s Customs Act: The Tribunal agreed with the SDR's view, emphasizing that the final assessments were appealable and could not be challenged through refund claims. It was noted that the claim for exemption from CVD was not considered by the assessing authority, and thus, Section 154 of the Customs Act, pertaining to arithmetical errors or slip/omissions, was deemed inapplicable in this case.
Finalization of assessments: The Tribunal highlighted that the assessing authority did not consider the Supreme Court judgment in the TISCO case during finalization of assessments, leading to the rejection of refund claims. The legal position, as per the Priya Blue Industries case, established that a final assessment should be challenged through an appeal and not a refund claim, emphasizing the role of the competent officer of customs in such matters.
Appealability of assessment orders: Ultimately, the Tribunal upheld the lower appellate authority's decision to reject the refund claims, resulting in the dismissal of the appeals. The judgment emphasized the well-settled legal position that final assessments cannot be challenged through refund claims but must be addressed through the appropriate appeal process.
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2009 (6) TMI 781
Issues involved: Application for waiver of pre-deposit of duty, interest, and penalty u/s Rule 4(5) of the Cenvat Credit Rules, 2004.
Summary:
Issue 1: Recovery of excess material cost from job worker
The applicants sent inputs/partly finished goods to job workers for further processing. Job worker used excess materials on which Cenvat credit was availed. Applicants recovered the cost of excess material from job worker through debit note. The issue was whether recovery of cost for excess consumption constitutes reversal of Cenvat credit.
Judgment: Recovery of cost from job worker for excess material not used in job work activity requires reversal of Cenvat credit as per Rule 3 of Cenvat Credit Rules, 2004.
Issue 2: Compliance with Rule 4(5)(a) of Cenvat Credit Rules, 2004
Rule 4(5)(a) allows sending inputs to job worker for further processing, with a requirement to receive them back within 180 days. Failure to receive back within stipulated time necessitates payment equivalent to Cenvat credit. The issue was whether applicants complied with this rule.
Judgment: Applicants issued debit notes for excess material to job worker, indicating non-receipt of material back within prescribed time. Compliance with Rule 4(5)(a) was questioned.
Issue 3: Prima facie case for waiver of pre-deposit
Applicants argued that recovery from job worker was due to deviations from standard consumption norms, not less yield. They contended that the issues were debatable and made a prima facie case for waiver of pre-deposit of duty, interest, and penalty.
Judgment: Tribunal found applicants' arguments persuasive and allowed waiver of pre-deposit of duty, interest, and penalty until final disposal of appeals.
This judgment by the Appellate Tribunal CESTAT, Mumbai, in 2009, addressed the recovery of excess material cost from a job worker, compliance with Rule 4(5)(a) of the Cenvat Credit Rules, 2004, and the grant of waiver of pre-deposit based on a prima facie case presented by the applicants.
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2009 (6) TMI 780
Issues:
1. Correct classification of the product Sugar Cone in Aluminum foil cone.
2. Dispute regarding classification under Heading 1905.3290 or 7612.9090.
3. Application to dispense with the pre-deposit of duty amount and penalty.
Issue 1: Correct Classification of the Product Sugar Cone in Aluminum Foil Cone
The dispute in this case revolves around the correct classification of the product Sugar Cone placed in Aluminum foil cone manufactured by the appellant. The appellants classify the sugar cones under Heading 1905.3290 and the aluminum sleeves under Chapter 76. However, the controversy arises when the composite product of sugar cone in aluminum foil cone is considered. The Revenue argues for classification under Heading 7612.9090, leading to proceedings against the appellants for a change in classification and recovery of differential duty.
Issue 2: Dispute Regarding Classification under Heading 1905.3290 or 7612.9090
The Assistant Commissioner initially accepted the appellant's contention that the aluminum foil cone is a covering for packing ice-cream along with the sugar cone. By applying Rule 3(4) of General Rules of Interpretation, he classified the product under Chapter 19, favoring the appellants. However, the Commissioner (Appeals) overturned this decision and sided with the Revenue's argument for classification under Chapter 76. The Tribunal noted that the dispute only pertains to the composite product of sugar cone in aluminum foil cone, emphasizing that the aluminum foil cones are not containers under Chapter 76. The Tribunal found merit in the appellant's argument that the product should be classified under Heading 1905.32, considering the weight distribution and the nature of the product.
Issue 3: Application to Dispense with Pre-Deposit of Duty Amount and Penalty
The appellants sought to dispense with the condition of pre-deposit of duty amount and penalty. After considering the arguments and the classification issue, the Tribunal found in favor of the appellants, allowing the stay petition unconditionally. The Tribunal highlighted that the balance of convenience favored the appellants, especially since the original adjudicating authority had ruled in their favor. Therefore, the application to dispense with the pre-deposit of duty amount and penalty was granted by the Tribunal.
In conclusion, the judgment by the Appellate Tribunal CESTAT, Ahmedabad, addressed the issues of correct classification of the product Sugar Cone in Aluminum foil cone, the dispute regarding classification under different headings, and the application to dispense with the pre-deposit of duty amount and penalty. The Tribunal ruled in favor of the appellants, emphasizing the classification under Heading 1905.32 for the composite product and allowing the stay petition unconditionally.
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2009 (6) TMI 779
Issues:
1. Whether cutting and slitting of jumbo rolls and log rolls to smaller adhesive tapes amounts to manufacture.
Analysis:
The case involved a stay petition filed against the Order-in-Appeal passed by the Commissioner (Appeals), upholding the demand of duty, interest, and penalty imposed by the Additional Commissioner of Central Excise. The primary issue was whether the activity of cutting and slitting jumbo rolls to smaller adhesive tapes constituted manufacturing. The Commissioner (Appeals) relied on the Supreme Court judgment in Kores India Ltd. v. CCE, holding it to be manufacturing. However, the applicants pointed out a contradictory decision by the Commissioner of Belapur, who held that the same activity did not amount to manufacture, citing the Supreme Court judgment in C.C.E. v. S.R. Tissues and a Tribunal decision in Anil Dang v. CCE. Noting the inconsistent stand taken by the Revenue and the undue hardship it would cause to the applicants, the Tribunal decided to dispense with the pre-deposit of duty, interest, and penalty, based on the precedents of the Supreme Court and the Tribunal.
In conclusion, the Tribunal granted a stay on the recovery of duty, interest, and penalty pending the disposal of the appeal, considering the conflicting decisions and the undue hardship that would be imposed on the applicants. The Tribunal's decision was based on the interpretation of relevant legal precedents and the need to ensure fairness and justice in the proceedings.
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2009 (6) TMI 778
Issues involved: Imposition of penalty under Section 11AC of the Central Excise Act, 1944.
Summary:
The appeal was filed by the Revenue against the setting aside of the penalty imposed on the respondent for clearing goods under exemption meant for international competitive bidding mega power projects. The Commissioner (Appeals) found that the appellant acted bona fide based on customer advice, but later realized the exemption condition was not fulfilled. The penalty was deemed unwarranted and set aside.
The main issue was whether the penalty under Section 11AC of the Act was leviable. Section 11AC outlines penalties for non-levy of duty due to fraud, collusion, misstatement, or suppression of facts with intent to evade payment. The respondent argued they acted in good faith based on the Letter of Intent for duty exemption.
The records revealed discrepancies in the show cause notice regarding the alleged wrongful claim of exemption. The respondent's counsel cited relevant Supreme Court judgments emphasizing the necessity of proving intent to evade duty for penalty imposition under Section 11AC.
The Tribunal concluded that there was no evidence of mens rea to evade duty by the respondent. Since the appellant failed to establish deliberate deception or intent to evade duty, the penalty under Section 11AC was deemed inapplicable. Consequently, the appeal was dismissed, and the case was disposed of accordingly.
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2009 (6) TMI 777
Issues:
1. Whether the lower authorities were correct in rejecting the assessee's refund claim on the ground of limitation?
Analysis:
1. The primary issue in this case revolved around the rejection of the assessee's refund claim based on the limitation period. The authorities contended that the claim, amounting to Rs. 2,04,638, filed by the assessee was time-barred as it was submitted on 24-2-2001, while the duty payment for which the refund was sought had been made on 24-8-1998. However, the party argued that the refund claim was actually presented on 23-2-1999. The critical aspect was a document, a xerox copy of the application for refund, which had a handwritten note indicating the date as 24-2-99. There was a discrepancy in the interpretation of this date, with the authorities considering it as '23-2-2001' and the assessee asserting it to be '23-2-1999'. The date on the application was crucial as it determined the timeliness of the claim.
2. The Tribunal directed the respondent to produce the original file to clarify the date discrepancy. Despite repeated adjournments and delays in producing the records, the Jt. CDR failed to provide the original documents. Consequently, the Tribunal was inclined to accept the assessee's assertion that the refund claim was indeed filed on 23-2-1999. The Tribunal emphasized that the claim should not have been rejected as time-barred, although the issue of unjust enrichment needed to be considered during the disposal of the claim.
3. In the final judgment, the Tribunal set aside the orders of the lower authorities and allowed the appeal by way of remand. The original authority was directed to reexamine and dispose of the refund claim, ensuring that the claimant had a fair opportunity to present evidence regarding unjust enrichment. Given the age of the dispute, the Tribunal stressed the importance of expeditiously adjudicating the matter, mandating that a decision be reached within three months from the receipt of the certified copy of the order.
This detailed analysis highlights the critical aspects of the judgment, focusing on the interpretation of dates, procedural lapses in producing evidence, and the directive for a prompt resolution of the refund claim while considering the aspect of unjust enrichment.
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2009 (6) TMI 776
Issues Involved: Stay petition against Order-in-Appeal upholding Order-in-Original regarding Customs duty demand under Notification No. 21/2002 for imported goods used in petroleum operations.
Summary:
Issue 1: Interpretation of Notification No. 21/2002 conditions
The applicants imported goods under Notification No. 21/2002 for petroleum operations, subject to re-export condition in Essentiality Certificate. Authorities denied benefit due to late re-export. Tribunal found no re-export condition in Notification, only requirement for goods use in petroleum operations. Director General waived re-export condition, emphasizing substantive use over procedural lapses. Exemption cannot be denied for delay in re-export, a procedural issue.
Decision: Tribunal waived pre-deposit of duty and interest, stayed recovery pending appeal disposal.
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2009 (6) TMI 775
Issues involved: Rectification of mistake in a common final order dated 16-12-08 u/s 85 appeals filed by the department and 26 cross objections filed by M/s. Tata Motors.
Summary:
1. Rectification Applications by Vendors of M/s. Tata Motors:
Fifteen rectification applications filed by eleven vendors of M/s. Tata Motors against a common final order dated 16-12-08 were considered by the Tribunal. The applications challenged the addition of 0.085% in the assessable value towards the cost of drawings and designs, as approved in the final order. The final order also addressed the payment of additional duty and penalties, remanding the quantification of duty amount for the normal period of limitation to the original authority. The vendors sought a reconsideration of the final order, which was passed after hearing all concerned parties, including the present applicants and their representative.
2. Scope of Rectification and Review:
The Tribunal noted that rectification applications can only address errors apparent on the face of the record and do not allow for a complete review or re-consideration of the order. The decision to add 0.085% towards drawings and designs charges was a conscious and deliberate one, based on submissions made during investigation by M/s. Tata Motors. The Tribunal emphasized that the drawings and designs were not simple but contained technical details representing specific components to be manufactured. As such, the plea for a review of the order through rectification applications was deemed legally impermissible, as the Tribunal lacks the power to review its own order. It was also highlighted that neither M/s. Tata Motors nor other vendors in a similar position as the present applicants had filed any application for rectification or review of the final order.
3. Dismissal of Rectification Applications:
Considering the above points, the Tribunal dismissed the rectification applications filed by the vendors of M/s. Tata Motors as not maintainable. The decision was pronounced in the open Court, bringing closure to the issue at hand.
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2009 (6) TMI 774
Issues:
1. Waiver of pre-deposit of stay of recovery in respect of penalty imposed under Rule 25 of the Central Excise Rules, 2002.
Analysis:
The judgment revolves around the issue of waiver of pre-deposit and stay of recovery concerning a penalty imposed under Rule 25 of the Central Excise Rules, 2002. The appellant had paid duty with interest before the issuance of the show-cause notice, seeking waiver of pre-deposit in relation to a penalty of Rs. 22,000 imposed on them under Rule 25. The show-cause notice proposed penalties under Rule 25 and Rule 27 of the Central Excise Rules, read with Section 11AC of the Central Excise Act, 1944. The original authority invoked Rule 25(2) after determining that Section 11AC was not applicable to the case, a decision upheld by the Commissioner (Appeals).
The crux of the argument presented by the appellant's counsel was that, based on the case's facts, no penalty should have been imposed under Rule 25. It was contended that since no specific sub-rule of Rule 25 was mentioned in the show-cause notice, invoking sub-rule (2) without factual findings was impermissible. Legal precedents, including Ucal Fuel Systems Ltd v. Commissioner of Central Excise, Chennai, and Commissioner of Central Excise & Customs, Daman v. Al-Amin Exports, were cited to emphasize the necessity of notifying the assessee of the contravention leading to penalty under Rule 25.
The absence of any contrary binding case law was noted by the tribunal. After considering the arguments and finding a prima facie case in favor of the appellant regarding the penalty, the tribunal granted waiver of pre-deposit and stay of recovery concerning the penalty amount. The decision was made after a thorough examination of the records and arguments presented by both sides, ensuring compliance with legal principles and precedents.
In conclusion, the judgment meticulously analyzed the appellant's plea for waiver of pre-deposit and stay of recovery in relation to a penalty imposed under Rule 25, addressing the legal intricacies surrounding the invocation of specific sub-rules, compliance with procedural requirements, and the application of relevant legal precedents to reach a well-reasoned decision in favor of the appellant.
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2009 (6) TMI 773
Valuation - clutch - includibility - welded with driving lugs - Job work - Held that: - It is not a case where the lugs were supplied free of cost by GSCL so as to be attached and welded to the clutch cover, in which case, their value was required to be added in the value of the final product. Welding of the lugs to the clutch cover was on job work basis in terms of Rule 4(5)(a) and under the cover of challans. GSCL had availed the credit on the lugs provided by them and the value of the same would be added in the final assembly manufactured by GSCL. As such, the duty on the lugs’ price would be discharged by GSCL. We find no reasons to add the value of such lugs in the value of the clutch covers manufactured by the appellant, especially when such job has been done by the appellant in terms of Rule 4(5)(a) of the Cenvat Credit Rules, 2002.
Time limitation - Held that: - The movements of the driving lugs were under the cover of challan and in terms of Rule 4. As such, it can not be said that the appellants had any mala fide or any suppression/mis-statement with intent to evade payment of duty - All periodical returns were being filed by them, the driving lugs were being brought to the factory under the cover of challan and final product was also being covered under the cover of same challan - the demand is barred by limitation also.
Appeal allowed - decided in favor of appellant.
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2009 (6) TMI 772
Valuation (Central Excise) - Discount on turnover - Para 9 of the Circular dated 13-6-2000 - Held that: - the appellants had issued a circular to all the dealers about availability of discount on Mar. 15, 2003, which shows that the turnover discount and its quantum was known to both dealers and the appellants - perusal of Para 9 of the Circular dated 13-6-2000 also shows that the last two lines which required provisional assessment to be resorted to and department to be informed were basically procedural. It is not the case of the department that because such non-intimation or provisional assessment was not requested for, the department has not been able to arrive at the correct assessable value. Department has also not examined whether the discount has been passed on or not. Further, the requirement of provisional assessment and intimation are not prescribed by statute. We also note that it is a case where provisional assessment was not resorted to and department was not informed, the appellant can not be denied the benefit of deduction of turnover discount which is admissible discount as per the provisions of Section 4 - matter remanded to the Original Adjudicating Authority, who shall examine the refund claim and eligibility of the appellants for refund to arrive at exact amount admissible and also to examine the aspect of unjust enrichment - appeal allowed by way of remand.
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2009 (6) TMI 771
Stay/Dispensation of pre-deposit - Penalty - Personal penalty - Held that: - It is settled principle of law that the law existing on the date of lis shall govern the breach of law alleged. When no law exists on the date of lis and nothing can be called as a breach on the basis of law in existence, penalty proceeding being quasi criminal proceedings, sub-rule (2) does not embrace the case of the Appellant. The appellant should not, therefore, suffer undue hardship at this stage - pre-deposit waived during the pendency of appeal.
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2009 (6) TMI 770
Issues:
1. Waiver of pre-deposit of Central Excise duty amount.
2. Interpretation of Central Excise Rules regarding default in payment and forfeiture of monthly payment facility.
Analysis:
1. The applicants filed for waiver of pre-deposit of Rs. 2,32,35,580, which was the amount in default for Central Excise duty during February and March 2005. The Revenue claimed that the applicants violated Sub-rule 3A of Rule 8 of the Central Excise Rules, 2002 by clearing goods in September 2006 using Cenvat credit instead of paying the duty from the current account. The contention was whether the duty should have been paid along with interest as per the rules in force during the default period or as per the amended rules effective from April 1, 2005, which introduced the provision for forfeiture of monthly payment facility in case of default.
2. The applicants argued that since there was no specific order by the Assistant Commissioner or Deputy Commissioner regarding the forfeiture of the monthly payment facility for the default period of February and March 2005, the demand was not sustainable. They relied on the decision in the case of M/s Noble Drugs Ltd. v. Commr. of Central Excise, Nasik - 2007 (215) E.L.T. 500 (Tri.-L.B.) to support their stance. The Tribunal found that during the default period, there was no provision for forfeiture of the monthly payment facility, and the duty along with interest had been paid by the applicants. Therefore, the Tribunal held that prima facie the applicants had a strong case, waived the pre-deposit of duty for the appeal hearing, and stayed the recovery of the same, allowing all stay petitions.
This judgment clarifies the application of Central Excise Rules concerning default in payment of duty and the forfeiture of monthly payment facility. It emphasizes the importance of adherence to the rules in force during the default period and provides relief to the applicants based on the absence of specific orders regarding forfeiture during the default period. The decision showcases the significance of legal provisions and their interpretation in determining the liability of duty payment in excise matters.
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2009 (6) TMI 769
Issues:
1. Assessment of Motor Spirit and HSD imported through Kandla Port - value vs. actual shore tank quantity.
2. Treatment of Customs duties for charging CVD.
Analysis:
1. The primary issue in this appeal before the Appellate Tribunal CESTAT, Ahmedabad revolves around the assessment methodology for Motor Spirit and HSD imported by the appellant through Kandla Port. The dispute centers on whether the assessment should be based on the transaction value or the actual shore tank quantity received. The impugned order favored provisional assessment based on transaction value rather than the actual quantity. Additionally, it was determined that if the duty rate is specific, it should be applied to the actual quantity received as per shore tank measurement. The tribunal was tasked with deciding the appropriate assessment method for these imported goods.
2. Another significant point raised in the appeal pertained to the treatment of various Customs duties for the purpose of charging Countervailing Duty (CVD). The appellant contended that certain duties were erroneously computed and argued that duty should only be charged on the quantity actually received, citing Section 12 of the General Clauses Act, 1897. Furthermore, there was a dispute regarding whether an additional Customs duty paid under the Finance Act should be included in the computation of CVD payable. These issues required careful deliberation by the tribunal to ensure a fair and accurate assessment of the Customs duties involved.
3. During the proceedings, the appellant sought to introduce new grounds through a miscellaneous application, which had not been raised before the original adjudicating authority or the appellate authority. The appellant's representative highlighted various legal points supporting their case, including the correct computation of duty based on actual quantity received and the exclusion of certain duties for CVD calculation. The tribunal, after considering both parties' submissions, allowed the appellant to introduce these new grounds, emphasizing that legal points can be raised at any stage of the proceedings.
4. The tribunal acknowledged that the new grounds raised by the appellant warranted detailed consideration by the original adjudicating authority in light of relevant laws and facts. Consequently, it was decided that the matter should be remanded to the original adjudicating authority for a fresh assessment considering the additional legal points raised by the appellant. The appellants were assured of a fair opportunity to present their case during the subsequent proceedings before the final order is issued, ensuring procedural fairness and thorough examination of the legal issues at hand.
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9911796707
