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Showing 281 to 300 of 879 Records

• 2010 (1) TMI 1035
  
  The Appellate Tribunal CESTAT CHENNAI ruled in favor of the appellants regarding the confiscation of Heavy Melting Scrap. The tribunal found that the requirement of a pre-shipment inspection certificate did not apply as the goods were exported before the introduction of this requirement. The confiscation and penalty were set aside, and the appeal was allowed.

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• 2010 (1) TMI 1034
  
  Issues involved: Liability to pay duty on excess quantity filled in bags by the assessee u/s 11A, applicability of previous tribunal decision and circular allowing difference in weight for levy of excise duty.
  
  Liability to pay duty: The case involved M/s. Finolex Industries Ltd. filling excess quantity in bags ranging from 0.06% to 0.39%. A show-cause notice was issued for the period from April 1995 to June 2000, demanding duty on the excess quantity filled by the company.
  
  Applicability of previous tribunal decision: The Commissioner, relying on a previous tribunal decision in the case of Reckitt & Coleman India Ltd., held that the assessee was not liable to pay duty on the excess quantity filled in the bags. The tribunal decision stated that when duty rates are specific, filling excess quantity cannot be a ground for duty demand.
  
  Arguments by the Revenue: The Revenue argued that the Commissioner wrongly relied on the Reckitt & Coleman India Ltd. case. They cited a decision by the Hon'ble High Court of Madras in Carborundum Universal Ltd. v. Union of India, stating that the limitation under Section 11A is not applicable when the demand arises from stock taking under Rule 223A. The Revenue also referred to a circular allowing a 9% difference in weight for levy of excise duty on Pan Masala.
  
  Tribunal's decision: The tribunal found the Revenue's arguments unconvincing. It held that the Reckitt & Coleman India Ltd. decision was applicable to the case at hand. The tribunal distinguished the case from the Madras High Court decision, stating that the demand did not arise from stock taking but from verifying the assessee's records to determine the differential duty. Consequently, the tribunal rejected the Revenue's appeal, providing benefit to the respondents.
  
  Conclusion: The tribunal upheld the decision that the assessee was not liable to pay duty on the excess quantity filled in the bags, based on the specific duty rates and the findings from the investigation and verification of records.

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• 2010 (1) TMI 1033
  
  Issues:
  - Appeal against Order-in-Appeal No. 19/4/2004-Central Excise
  - Direction by Hon'ble High Court to consider demand of interest for delayed period
  - Question of imposition of penalty raised by Revenue
  - Interpretation of provisions of Section 11AB
  - Challenge on the imposition of penalty by Revenue before Hon'ble High Court
  - Consideration of demand of interest for the period September 1999 to December 2001
  
  The judgment pertains to an appeal filed against Order-in-Appeal No. 19/4/2004-Central Excise. The Hon'ble High Court directed the Tribunal to consider the demand of interest for a delayed period. The Revenue raised concerns about the imposition of penalties, arguing that the appellant should pay penalty and interest. The key issue revolved around the interpretation of Section 11AB concerning the demand of interest. The Revenue challenged the Tribunal's decision on penalties before the Hon'ble High Court. The Tribunal, in its earlier order, had set aside the penalties imposed on the appellant. The Hon'ble High Court's judgment highlighted that the demand was not sustainable, leading to the question of interest payment. The Tribunal found that since the impugned order was set aside on merits with no sustainable demand, the appellant was not liable to pay interest. Consequently, the impugned order was set aside, and the appeal was allowed on 18-1-2010.
  
  In the case, the Hon'ble High Court directed the Tribunal to consider the demand of interest for the delayed period. The appellant argued that Section 11AB provisions were not applicable before 11-5-2001 unless there was suppression of fact, misstatement, fraud, or collusion. The Revenue contended that penalties should also be imposed, raising the question before the Hon'ble High Court. The Tribunal found that the impugned order was set aside on merits, and the demand was not sustainable. Since there was no appeal against this decision, the Tribunal concluded that the appellant was not liable to pay interest. Therefore, the impugned order was set aside, and the appeal was allowed on 18-1-2010.
  
  The central issue in the judgment was the demand of interest for the period September 1999 to December 2001 as directed by the Hon'ble High Court. The Tribunal emphasized that the Revenue did not challenge the earlier order on its merits, which had set aside the demand as not sustainable. As a result, the Tribunal held that there was no basis for the appellant to pay interest. The impugned order was overturned, and the appeal was granted on 18-1-2010, based on the lack of a sustainable demand for interest.

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• 2010 (1) TMI 1032
  
  Issues involved: Application for restoration of appeal dismissed for non-compliance and the timeliness of filing the restoration application.
  
  Issue 1: Non-compliance leading to appeal dismissal
  The applicant filed for restoration of appeal Nos. 851-853/07, which were dismissed by the Bench for non-compliance with the order of pre-deposit. The applicant had deposited the required amount on 12-11-2008, before the compliance deadline of 18-11-2008. However, they failed to produce the compliance report before the Bench on 3-11-2008, leading to the dismissal of their appeals.
  
  Issue 2: Timeliness of restoration application
  The applicant filed the restoration application on 5th November 2009, which was beyond the three-month period from the date of the final order dismissing the appeals. The JCDR cited a previous Tribunal decision and argued that the application should be dismissed based on the time limitation. The Registry confirmed that the final order was dispatched to the appellant on 19-11-2008, contradicting the appellant's claim of not receiving the order. The Tribunal referred to the Mumbai Bench decision in a similar case to emphasize the importance of filing restoration applications within the three-month period from the dismissal of the appeal.
  
  In conclusion, the Bench dismissed the applications for restoration of appeals as they were filed beyond the three-month period from the date of the final order dismissing the appeals. The decision was based on the established principle that such applications must be filed within the maximum period of three months from the dismissal of the appeal, with a requirement to disclose any cause for delay. Since no cause for the delay was disclosed in the present case, the applications for restoration were not entertained.

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• 2010 (1) TMI 1031
  

  100% EOU - benefit of N/N. 23/2003-C.E., dated 31-3-2003 as amended - clearance to DTA - extended period of limitation - Held that: - there is no examination of the goods in question which have been cleared in the DTA in terms of definition of similarity - In such cases, there has to be examination in respect of each product to show that this product is not similar to the one exported and why benefit of notification is not available to this particular product. In the absence of clear finding in respect of each product, we consider the order would be incomplete - we remand the matter to the Original Adjudicating Authority, who shall consider in respect of each item the eligibility in DTA and also which meaning of “similar goods” to be adopted - appeal allowed by way of remand.

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• 2010 (1) TMI 1030
  
  Issues: Jurisdiction of Commissioner (Appeals) to remand the matter.
  
  Analysis:
  The appeal in question stemmed from an order issued by the Commissioner (Appeals) that set aside the entire order passed by the adjudicating authority and remanded the matter for re-examination. The appellants, engaged in the manufacture of kitchen utensils and aluminum circles/strips, faced a show cause notice for alleged clandestine removal of products. The Additional Commissioner confirmed certain demands and dropped others, leading to an appeal before the Commissioner (Appeals). The crux of the challenge lay in the absence of jurisdiction of the Commissioner (Appeals) to remand the matter.
  
  The legal provision under sub-section (3) of Section 35A of the Central Excise Tariff Act, 1985, dictates that the Commissioner (Appeals) must either confirm, modify, or annul the original authority's decision without the power of remand post the 2001 amendment. The impugned order, issued in 2008, post-amendment, lacked the authority to remand the matter. Citing the decision in Bharti Electronics v. Commissioner of Central Excise, Delhi-II, it was clear that the Commissioner (Appeals) overstepped by remanding the matter. Consequently, the order was deemed unsustainable, necessitating its setting aside and remand to the Commissioner (Appeals) for proper consideration in line with the law.
  
  In conclusion, while other issues raised were left open, the appeal succeeded on the grounds of the Commissioner (Appeals) lacking the jurisdiction to remand the matter. The impugned order was set aside, and the matter was remanded for reevaluation by the Commissioner (Appeals) in adherence to legal provisions, thereby disposing of the appeal effectively.

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• 2010 (1) TMI 1029
  

  Method of Valuation - goods cleared to another unit of the appellant company - penalty - Held that:- The dispute involved relates to adoption of value relating to clearances made for captive consumption by another unit of the appellant company. Undisputedly, the recipient unit of the appellant is eligible for the credit of duty paid by the appellant. Under these circumstances, the intention to evade is clearly absent. The original authority also has refrained from imposing penalty - appeal allowed - decided in favor of appellant.

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• 2010 (1) TMI 1028
  
  Issues involved: Refund of fine and penalty imposed by Commissioner of Customs under Section 125 and Section 112 of the Customs Act.
  
  Summary:
  The Appellate Tribunal CESTAT MUMBAI allowed the appeal filed by the appellant against the Commissioner of Customs' order imposing a fine of Rs. 8 lakhs under Section 125 and a penalty of Rs. 4 lakhs under Section 112 of the Customs Act. The Tribunal set aside the Commissioner's order, making the appellant entitled to a refund of the fine and penalty. However, the customs authorities did not consider the appellant's application for the refund. The appellant then filed a present application seeking a direction for the refund of the amounts.
  
  The Judicial Member noted that the Assistant Commissioner of Customs (Central Refund Cell) received a letter mentioning the Tribunal's order that the vehicle was not liable to confiscation under Section 111(d) of the Customs Act, and therefore, the appellant was not liable to penalty under Section 112(a). The Member observed that the Assistant Commissioner seemed unaware of the effect of the Tribunal's order, which set aside the imposition of fine and penalty when the appeal was allowed.
  
  Consequently, the Tribunal directed the Department to refund the amounts of fine and penalty deposited by the appellant. The Assistant Commissioner was given a fortnight to effect this refund, and compliance was to be reported by a specified date. In case of non-compliance, the Assistant Commissioner was required to personally appear before the Tribunal on the said date.

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• 2010 (1) TMI 1027
  
  Issues Involved:
  1. Wrong availment of Modvat credit due to application of different grades.
  2. Discrepancy in Modvat credit due to non-use/non-receipt of imported materials as indicated in Balance Sheets.
  
  Summary:
  
  Issue 1: Wrong Availment of Modvat Credit Due to Application of Different Grades

  The main allegation is that the appellant availed Modvat credit on certain inputs which were not received in their factory and used a lesser grade granules than what was shown as delivered in the invoices. The adjudicating authority disallowed Modvat credit on the grounds of wrong availment with reference to the application of different grades during the period from 29-4-98 to 20-11-99 amounting to Rs. 4,24,022.00 and from 15-6-2000 to 19-6-2000 and on 28-5-2000 due to discrepancy between HD 53 EA 010 PA and without PA and E/45A/033 0479050 grades amounting to Rs. 2,20,347.00.

  The Tribunal found that the appellant had manufactured finished goods, i.e., HDPE pipes, and cleared the same on appropriate payment of duty. The issue was settled in favor of the appellant by the decision of the Coordinate Bench in the case of Indian Polypipes v. Commissioner of Central Excise, Kolkata-I [2003 (157) E.L.T. 652 (T)], which held that blending/mixing of different grades of virgin HDPE raw materials is possible to produce HDPE material for pipe purposes as per DOT specifications. The Tribunal set aside the impugned order confirming the demand of duty and penalties on the first two categories of wrong availment of credit and input quality discrepancies.

  Issue 2: Discrepancy in Modvat Credit Due to Non-Use/Non-Receipt of Imported Materials as Indicated in Balance Sheets

  The demand of duty amounting to Rs. 24,81,895/- was confirmed based on the allegation that the appellant had not received consignments of HDPE granules, which were imported by them, and all the entries were only book entries as indicated by the Balance Sheets showing 'nil' receipt of imported raw materials. The Tribunal found that the balance sheets for the period 1995-96 to 1998-99 indicated 'nil' consumption of imported raw materials, but a corrigendum issued by the Chartered Accountant clarified that there was consumption of imported raw materials in the manufacture of finished goods. The Tribunal noted that the adjudicating authority did not consider the statutory records (RG 23A Part I & II) maintained by the appellant, which recorded the receipt and issue of the imported granules.

  The Tribunal remanded the matter back to the adjudicating authority for the limited purpose of verifying the statutory records regarding the receipt and consumption of imported raw materials and to arrive at a fresh conclusion. The adjudicating authority was directed to grant an opportunity of personal hearing to the appellant before arriving at a conclusion on this point. The penalties imposed on the officers of the company were deemed unwarranted and were set aside.

  Conclusion:

  The appeals were partly allowed, setting aside the impugned order on the first issue and remanding the second issue back to the adjudicating authority for fresh consideration based on statutory records. The penalties on the officers of the company were also set aside.

  (Pronounced in the court on 18-1-2010)

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• 2010 (1) TMI 1026
  
  Issues Involved:
  1. Determination of the status of the appellants as "independent processors" under the compounded levy scheme.
  2. Validity of the duty demand and penalty imposed by the Assistant Commissioner.
  3. Jurisdiction and authority of the Assistant Commissioner to reopen the issue after the Commissioner's order dated 31-5-2005.
  4. Compliance with procedural requirements under the compounded levy scheme.
  5. Impact of the Commissioner's order on the provisional determination of capacity and duty liability.
  
  Issue-wise Detailed Analysis:
  
  1. Determination of the Status of the Appellants as "Independent Processors" under the Compounded Levy Scheme:
  The appellants were engaged in processing man-made fabric and filed a declaration under the Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules 1998. The Commissioner, in an order dated 31-5-2005, held that the appellants were not "independent processors" at the relevant time and thus not liable under the compounded levy scheme. This determination was based on the fact that the appellants had taken a knitting unit on lease, acquiring proprietary interest, which excluded them from the definition of "independent processors."
  
  2. Validity of the Duty Demand and Penalty Imposed by the Assistant Commissioner:
  The Assistant Commissioner confirmed a duty demand of Rs. 1,16,129/- for the period from 12-3-99 to 19-3-99 on a pro-rata basis and for the period from 20-3-99 to 30-4-99 on an ad valorem basis. Additionally, a penalty of Rs. 1,16,129/- and interest at 36% on the outstanding amount were imposed. However, this order was challenged on the grounds that it contradicted the Commissioner's earlier finding that the appellants were not "independent processors" during the relevant period.
  
  3. Jurisdiction and Authority of the Assistant Commissioner to Reopen the Issue:
  The learned Advocate for the appellants argued that the Assistant Commissioner could not arrive at a finding contrary to the Commissioner's order dated 31-5-2005. The Assistant Commissioner's order attempted to reopen the issue of the appellants' status as "independent processors" for the period prior to 20-3-99, despite the Commissioner's comprehensive determination covering the entire month of March 1999. The Tribunal agreed that the Assistant Commissioner's actions were beyond his jurisdiction, as the Commissioner's order had attained finality and was not challenged by the department.
  
  4. Compliance with Procedural Requirements under the Compounded Levy Scheme:
  The Tribunal emphasized that both the manufacturer and the department must strictly comply with the procedural requirements under the compounded levy scheme. The appellants had disputed their status as "independent processors" in March 1999 and had provided detailed records and figures to support their claim. The Commissioner's order dated 31-5-2005, which was based on these records, concluded that the appellants were not liable under the compounded levy scheme for the relevant period.
  
  5. Impact of the Commissioner's Order on the Provisional Determination of Capacity and Duty Liability:
  The Commissioner's order dated 31-5-2005 effectively vacated the provisional order dated 22-4-1999, which had determined the capacity and duty liability of the appellants. The Tribunal noted that there were no subsequent efforts by the department to reassess the production capacity or refix the duty liability of the appellants. Consequently, any demand for duty for the period from 12-3-99 to 19-3-99 or up to 15-3-99 was deemed invalid.
  
  Conclusion:
  The Tribunal set aside the impugned order, concluding that the Assistant Commissioner's findings were contrary to the Commissioner's final determination. The appeal succeeded, and the appellants were granted consequential relief, reaffirming that they were not "independent processors" under the compounded levy scheme for the relevant period.

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• 2010 (1) TMI 1025
  
  Issues:
  - Recovery of differential Cenvat credit and penalty imposed for under-valuation of exported goods.
  
  Analysis:
  1. The appellants were involved in the manufacture of goods falling under specific Chapter Headings. They exported a portion of returned goods under bond without paying Central Excise duty. The department demanded the reversal of differential Cenvat credit amounting to Rs. 55,895, along with an equal penalty for alleged under-valuation of the exported goods.
  
  2. The advocate for the appellant argued that there is no provision under Central Credit Rules for the recovery demanded by the department. He highlighted Rule 16 of Central Excise Rules and Rule 3(4)(b) of Cenvat Credit Rules, which the lower authority relied on, stating that these rules are not relevant or applicable in this scenario.
  
  3. On the other hand, the JDR representing the department supported the department's stance on the matter.
  
  4. The judge examined the provisions of Rule 3(4)(b) of Cenvat Credit Rules and Rule 16 of Central Excise Rules. It was concluded that these rules were not applicable as the goods were exported under bond, exempting them from duty payment. The department's reliance on these rules was deemed unfounded. Additionally, it was noted that the department failed to recognize that the returned goods were actually exported, not sold domestically, which would have triggered Rule 16 if they were sold domestically.
  
  5. Consequently, the judge found the department's order unsustainable in light of the law and ruled in favor of the appellant, allowing the appeal and providing consequential relief.
  
  This judgment clarifies the application of specific rules in cases of exported goods under bond, highlighting the importance of accurate assessment and interpretation of relevant provisions to avoid unjust penalties and recoveries.

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• 2010 (1) TMI 1024
  
  Issues involved: Clandestine removal of raw materials by a 100% EOU, demand of interest, invocation of extended period, imposition of penalty.
  
  Summary:
  1. The case involved M/s. Shree Rohini Enterprises, a 100% EOU, where a shortage of yarn was found during a surprise visit, leading to the payment of duty and subsequent show cause notice. The Commissioner (Appeals) held that no interest is payable and no penalties are imposable due to the delayed issuance of the notice.
  
  2. The Revenue appealed against the decision, arguing that the case involved clandestine removal of raw materials by the EOU, justifying the demand of interest, invocation of extended period, and imposition of penalty.
  
  3. The Tribunal found that the raw materials were diverted without payment of duty, constituting a shortage. As duty was paid early, the show cause notice issued after 5 years was deemed improper. However, interest was found to be payable as per the Central Excise Act, and the Commissioner (Appeals) was incorrect in exempting it. The appeal by the Revenue was allowed only on the issue of interest, upholding the Commissioner (Appeals) decision on other matters.
  
  4. The appeal filed by the Revenue was disposed of accordingly.

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• 2010 (1) TMI 1023
  
  Issues:
  Refund claim based on exclusion of transportation cost and insurance from assessable value under Central Excise Act.
  
  Analysis:
  The case involved a dispute over a refund claim by the appellant, a manufacturer of telephone instruments, regarding the exclusion of transportation cost and insurance from the assessable value for Central Excise duty calculation. The appellant supplied push-button telephone instruments to the Department of Telecom at a uniform price, which included taxes. Initially, the appellant paid duty after abating the excise duty from the price per instrument. Subsequently, they claimed that the assessable value also included transportation and insurance costs, leading to a refund claim of Rs. 99,545. The Asst. Commissioner rejected the claim, but the Commissioner (Appeals) allowed it based on a Supreme Court judgment and the doctrine of unjust enrichment.
  
  The main contention raised by the Revenue was that the appellant had paid duty on a higher value, including freight and insurance, and had not proven that this incidence was not passed on to the customer. The Revenue argued that the Tribunal's judgment in a similar case was not applicable. On the other hand, the appellant's counsel defended the order, stating that since the Department of Telecom had not paid any amount over the contract price, the duty incidence had not been passed on.
  
  The Tribunal carefully considered the submissions and records, noting that the appellant had paid duty on a higher value that included freight. The burden of proof, as per Section 12B of the Central Excise Act, was on the appellant to show that the duty incidence had not been passed on. Despite supplying instruments at a fixed contract price, the Tribunal held that this did not absolve the appellant from proving that the duty incidence had not been passed on. As the appellant failed to provide a breakup of the contract price and discharge the burden of proof, the Tribunal concluded that they were not eligible for the refund. Consequently, the Commissioner (Appeals) order permitting the refund was set aside, and the Revenue's appeal was allowed.
  
  In conclusion, the Tribunal's decision centered on the burden of proof regarding passing on duty incidence, emphasizing the need for clear evidence and compliance with statutory provisions for refund claims under the Central Excise Act.

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• 2010 (1) TMI 1022
  
  The appellant sought waiver of pre-deposit and stay of recovery of Rs. 2,16,80,296/-, penalty of 25,00,000/- imposed for clearing excisable goods without duty payment to an SEZ Developer. The demand was confirmed invoking Rule 6(3)(b) of Cenvat Credit Rules, 2004. The Tribunal found that clearances to SEZ developers are treated as exports under the SEZ Act, and the demand was not sustainable. Pre-deposit of dues was waived and recovery stayed pending appeal decision.

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• 2010 (1) TMI 1021
  
  Issues:
  Penalty imposition for issuing NOC, mis-declaration of goods, undervaluation, evasion of Customs duty.
  
  Analysis:
  The case involved an appeal against the imposition of penalties on M/s. Ubique Alloys Pvt. Ltd. and its Director for their involvement in the importation of steel pipes. The issue revolved around the issuance of a No Objection Certificate (NOC) by the Director to another entity, M/s. Keystone Inc., which resulted in mis-declaration of goods, undervaluation, and evasion of Customs duty. The appellant argued that merely issuing the NOC should not warrant a penalty. On the other hand, the Department contended that the appellants facilitated illegal activities by allowing the use of their company name and address without informing Customs authorities, leading to Customs duty evasion.
  
  Upon hearing both sides, the Tribunal considered the penalty imposed under Section 112(a) of the Customs Act, which pertains to individuals rendering goods liable for confiscation. The Tribunal noted that the section does not specifically address penalties for failure to inform Customs about NOC issuance or deliberate inaction. Additionally, the Tribunal disagreed with the Commissioner's view that the appellants allowed the use of their company name and address. The importation was conducted by M/s. Keystone Inc. in their own name, negating the notion of the appellants lending their name. Consequently, the Tribunal found a strong prima facie case in favor of the appellants and waived the pre-deposit requirement of penalties for both parties, allowing a stay petition during the appeal process.
  
  This judgment highlights the importance of clarifying legal provisions and factual circumstances to determine liability accurately in cases involving Customs duty evasion and related penalties. The decision underscores the need for a clear nexus between actions and statutory provisions when imposing penalties under the Customs Act.

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• 2010 (1) TMI 1020
  
  Issues involved: Alleged fraudulent availing of Cenvat Credit on imported goods, denial of credit to the appellant, rejection of refund claim.
  
  Issue 1: Alleged fraudulent availing of Cenvat Credit:
  The appellant imported 14000 kg of "Indigo Powder" from China, cleared on payment of appropriate duties. Subsequently, discrepancies were found in the stock at the appellant's factory, leading to a show-cause notice alleging that a portion of the goods did not belong to the Bill of Entry. The original authority confirmed duty demand, penalty, and interest, which was upheld by the Commissioner (Appeals).
  
  Issue 2: Denial of credit to the appellant:
  The appellant filed a refund claim stating they were not liable to reverse the Cenvat Credit of CVD paid on the imported goods. The claim was rejected by the authorities, citing discrepancies between the goods and import documents. The appellant contested this denial, arguing that all conditions for Cenvat Credit were met.
  
  Comprehensive Details:
  The Hon'ble High Court remanded the case for fresh consideration. The main contention was the denial of credit without evidence of illicit import or non-use in manufacturing. The department alleged that 9700 kg of "Indigo Powder" found did not belong to the Bill of Entry, justifying denial of Cenvat Credit. However, the appellant argued that all imported goods were covered by the Bill of Entry, satisfying duty payment and usage as input in manufacturing.
  
  The Commissioner (Appeals) upheld the department's allegation without a specific finding. The appellant contended that if a portion of the goods belonged to the Bill of Entry, the entire quantity should be considered covered. As all conditions for Cenvat Credit were met, the denial of credit was deemed unjustifiable.
  
  Judgement:
  The denial of credit to the appellant was deemed illegal, and appeal E/1264/07 was allowed. The appellant was entitled to a refund subject to fulfilling relevant conditions. Appeal E/167/06 was allowed for a remand to consider the refund claim after the main dispute was settled. The original authority was directed to pass a speaking order on the refund claim after providing a reasonable opportunity for the appellant to be heard.

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• 2010 (1) TMI 1019
  
  Issues:
  Classification of "cinders" under Central Excise Tariff Act, 1985; Refund claim for duty paid under protest; Eligibility for refund; Unjust enrichment; Consumer Welfare Fund; Adjudication order; Appeal against refund rejection.
  
  Classification of "cinders" under Central Excise Tariff Act, 1985:
  The appellant, engaged in manufacturing excisable goods, faced a dispute regarding the classification of "cinders" emerging from coal fired boilers. The Department claimed it fell under a specific sub-heading of the Central Excise Tariff Act, 1985, requiring duty payment. The Hon'ble High Court of Mumbai later ruled "cinders" as non-excisable, leading to a refund claim by the appellant for duty paid under protest.
  
  Refund claim for duty paid under protest; Eligibility for refund; Unjust enrichment:
  The appellant filed a refund claim for duty paid under protest from 1998 to 2002. The original adjudicating authority granted a partial refund, citing the appellant's failure to prove non-passing of duty liability to customers for the balance amount. The Commissioner (Appeals) upheld this decision, leading to an appeal by the appellant.
  
  Consumer Welfare Fund; Unjust enrichment; Adjudication order; Appeal against refund rejection:
  The appellate tribunal analyzed the contradictory stands taken by the lower authorities regarding the refund claim. The tribunal noted the appellant's indication of paying duty under protest to customers and the subsequent change in invoicing method. The tribunal found no merit in the appellant's appeal, stating that the duty realization remained constant despite changes in invoicing, leading to the rejection of the appeal.
  
  This detailed analysis highlights the issues of classification under the Central Excise Tariff Act, eligibility for a refund, unjust enrichment concerns, the role of the Consumer Welfare Fund, adjudication order implications, and the rejection of the appeal against the refund rejection. The judgment emphasizes the importance of consistent invoicing practices and the burden of proof on the appellant to establish non-passing of duty liability to customers, ultimately resulting in the dismissal of the appeal.

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• 2010 (1) TMI 1018
  

  Liability of interest - CENVAT Credit wrongly availed - Held that: - the credit availed by the assessee was always in balance and was not used for paying duty till the date of its reversal - the wrongly taken credit was fully reversed before issue of SCN - demand of interest is unjustified - appeal dismissed - decided against Revenue.

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• 2010 (1) TMI 1017
  
  Issues:
  1. Appeal against rejection of remission of duty on molasses stored in Kachha Pit without permission.
  2. Interpretation of Board Circulars regarding storage of molasses in Kachha Pit.
  3. Application of Rule 21 of Central Excise Rules for remission of duty.
  4. Justifiability of remission claim based on natural causes.
  
  Analysis:
  
  Issue 1:
  The appellant appealed against the rejection of their remission application for duty on molasses stored in Kachha Pit without permission. The Commissioner rejected the application citing non-compliance with Circulars and lack of preventive measures against deterioration.
  
  Issue 2:
  The appellant argued that the storage of molasses in Kachha Pit was in accordance with Board Circulars, even though permission was not obtained from the competent authority. They claimed that the refusal by the U.P. Excise Department to permit sale of below-grade molasses led to its storage in the pit for over 20 years.
  
  Issue 3:
  The Tribunal considered Rule 21 of Central Excise Rules, which allows remission of duty only in cases of natural causes or unavoidable accidents. The Commissioner rejected the remission application as there was no evidence of preventive measures taken by the appellant to avoid the loss of molasses.
  
  Issue 4:
  The Tribunal noted that the molasses had been stored in open Kachha Pit without necessary precautions, leading to its deterioration. Despite the withdrawal of the Circular permitting such storage, the appellant continued to store the molasses, justifying the rejection of the remission application based on natural causes.
  
  In conclusion, the Tribunal upheld the Commissioner's decision to reject the remission application, highlighting the lack of preventive measures taken by the appellant and the continued storage of molasses in open Kachha Pit despite the withdrawal of relevant Circulars. The appeal was dismissed based on the findings regarding non-compliance with regulations and absence of efforts to prevent the loss of the molasses.

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• 2010 (1) TMI 1016
  
  Issues Involved:
  1. Violation of principles of natural justice due to non-supply of the report.
  2. Validity of the end use certificate in establishing actual transportation of goods.
  3. Sufficiency of payment of duty on the final product to establish receipt of goods.
  4. Justification for the imposition of penalty.
  
  Detailed Analysis:
  
  1. Violation of Principles of Natural Justice:
  The respondents argued that they were not provided with a copy of the report from the concerned DTO/RTA, which was crucial for their defense. The adjudicating authority had relied on this report to conclude that the vehicle numbers mentioned in the invoices were not genuine. The Tribunal noted that the absence of this report's copy to the respondents constituted a violation of the principles of natural justice. However, it was also noted that the respondents did not dispute the contents of the invoices or the fact that the vehicle numbers were not genuine. Thus, the primary burden had shifted to the respondents to prove the actual transportation of goods.
  
  2. Validity of the End Use Certificate:
  The respondents relied on an end use certificate to establish that the scrap was actually transported and used in manufacturing. The Tribunal observed that the end use certificate, issued under Notification No. 17/01 dated 1-3-2001, was not sufficient to establish actual receipt and use of the goods, as it was based on documentary evidence rather than physical verification. The certificate dated 23rd March 2002, related to the goods allegedly used in July 2001, and there was no evidence of physical verification at the time of use.
  
  3. Sufficiency of Payment of Duty on Final Product:
  The respondents contended that the payment of duty on the final product should establish the receipt of raw materials. However, the Tribunal found that there was no factual statement or evidence provided by the respondents to support this claim. The ground (J) in the appeal memo was not considered sufficient to discharge the burden of proof regarding the actual receipt and use of the raw materials described in the invoices.
  
  4. Justification for the Imposition of Penalty:
  The Tribunal concluded that since it was established that the goods were not received by the respondents and the Cenvat credit was availed merely on the basis of invoices, the fraudulent nature of the transactions warranted the imposition of penalties. The Commissioner (Appeals) had failed to analyze the materials on record and had disposed of the appeal in a casual manner, relying on decisions that were not applicable to the facts of the case.
  
  Conclusion:
  The Tribunal set aside the impugned order of the Commissioner (Appeals) and restored the order passed by the adjudicating authority, confirming the demand and penalties imposed. The appeal was allowed, and the order of the adjudicating authority was reinstated with all consequential relief.

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