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Case Laws
Showing 301 to 320 of 770 Records
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2012 (4) TMI 529 - CESTAT MUMBAI
CENVAT Credit - Re conditioning of machines - Nexus with manufacturing activity - Held that:- appellant has cleared the re-conditioned machines on payment of duty and their rebate claim was also rejected. Such payment of duty in excess of the credit availed tantamounts to reversal of credit and there is no need to once again reverse the Cenvat credit taken. In a similar situation, the Hon’ble Apex Court in the case of CCE, Vadodara v. Narmada Chemattur Pharmaceuticals Ltd. [2004 (12) TMI 93 - SUPREME COURT OF INDIA] held that when Cenvat credit wrongly availed is exactly equivalent to the amount of duty paid, the consequence is revenue neutral and hence the demand for such wrong availment of credit is not sustainable in law. The ratio of this judgment squarely applies to the facts of the present case. So is the judgment of this Tribunal in the case of Vickers Systems International (2007 (12) TMI 140 - CESTAT, MUMBAI). Respectfully following these decisions - Decided in favour of assessee.
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2012 (4) TMI 528 - CESTAT NEW DELHI
Availment of CENVAT Credit - Credit denied since the bills of entry on the basis of which Cenvat credit has been taken do not bear the appellant unit’s address and there was no provision for endorsement of bill of entry and as such an endorsed bill of entry is not a valid duty paying document under Rule 9 of the Cenvat Credit Rules, 2004 - Held that:- both the units - the unit at Dharuhera which has taken the Cenvat credit and the Gurgaon unit whose address appears in the bills of entry, under which the inputs and capital goods had been imported - belong to the same company and it is a case of transfer of inputs and capital goods by one unit of a company to another unit. The credit has, therefore, been correctly taken - Following decision of UOI v. Marmagoa Steel Ltd. [2008 (7) TMI 95 - SUPREME COURT ] and Bando India (P) Ltd. v. C.C.E., Delhi-III [2010 (6) TMI 709 - CESTAT NEW DELHI] - Stay granted.
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2012 (4) TMI 527 - CESTAT NEW DELHI
Reversal of CENVAT Credit - Goods destroyed in fire enjoyed remission claim by adjudication order - Held that:- Commissioner examined the remanded issue and even in absence of assessee, allowed remission noticing that fire occurred on 18-6-2004 destroyed the goods. He noticed that as against the goods destroyed on 18-6-2004 which was confiscated by Revenue the appellant paid duty on 21-10-2004. The goods were destroyed by fire while it was under superdnama of the appellant. Those goods cannot get Cenvat credit as it is established principle of law that no one can enjoy at the cost of Revenue since the appellant was granted relief of remission and exchequer has also sacrificed duty component. There is no logic to unduly enrich the appellant when the input of respective value was destroyed and remission was allowed. Therefore, the order for reversal of Cenvat credit is justified in the eyes of law which calls for no interference - Decided against assessee.
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2012 (4) TMI 526 - CESTAT NEW DELHI
Denial of Refund claim - Commissioner allowed partial refund - Held that:- As regards the plea of Section 11DDA of the Central Excise Act, 1944, it is suffice to say that this Section confers power upon the Central Excise Officer to provisionally attach property belonging to the assessee on whom show cause notice has been served with a view to protect the interest of Revenue. This power can be exercised by the concerned officer with proper approval of the Commissioner (Appeals). In the instant case appellant has failed to show approval for attachment given by the Commissioner, on the contrary, the Commissioner Central Excise vide impugned order has directed refund of the money which imply that approval for provisional attachment has not been granted - Decided against Revenue.
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2012 (4) TMI 525 - CESTAT NEW DELHI
Duty demand under Section 11D read with Section 11A - Held that:- The act of such manufacture which attracts the provisions of this sub-section is recovering any amount from the buyer of the goods in any manner as representing duty of excise, which is in excess of the duty assessed and paid and in such a circumstances, the excess amount recovered from the customers as representing excise duty is required to be paid forthwith to the Government. For this purpose, it is not material whether the goods are sold from the factory gate or are cleared on payment of duty from the factory and are sold from the depots or consignment agent’s premises or any other premises.
Show cause notice itself mentions that the 6326120 litres of HSD in respect of which the appellant are alleged to have recovered an amount of Rs. 66,73,108/- as representing excise duty in excess of the duty actually paid, had been received from Koyali and Manmad. The show cause notice also refers to letter dated 15-2-2000 from Manager (Finance) of the appellant to Superintendent (Preventive), Division-I, Bhopal. A perusal of this letter shows that the HSD, in question, had been received from IOC Koyali and Manmad terminal of BPCL. Since it is IOCL, Koyali and BPCL, Manmad which had cleared the pre-budget stock of HSD, in question, on payments of duty at pre-budget rates, the appellant cannot be treated as the “person liable to pay the duty” in respect of the HSD, in question, and hence, the provisions of Section 11D(1) would not be applicable to them - Decided in favour of assessee.
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2012 (4) TMI 524 - CESTAT AHMEDABAD
Condonation of delay - Delay in receipt of order - Held that:- appellant is a CHA and it is the duty of the CHA to educate assessees in respect of the transactions entered with the Customs Authorities for import or export of the goods. It is common knowledge that he is aware of the procedures which are to be followed with the department. The reasoning given by the proprietor of the appellant which is reproduced in the form of affidavit, does not instil any confidence in his argument that the delay occurred is inadvertent. Nothing is mentioned as to when the employee left the services of the appellant in May 2010 and also as regards procedure of taking over the charge from him. We are unable to agree with the reasoning given by the appellant for seeking condonation of delay - Condonation denied.
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2012 (4) TMI 523 - CESTAT KOLKATA
Waiver of pre-deposit of duty - Penalty u/s 11AC - Denial of benefit Notification No. 2/2008-C.E., dated 1-3-2008 and Notification No. 4/2006-C.E., dated 1-3-2006 - Held that:- applicant had calculated and paid CVD component of the total duty availing exemption Notification No. 2/2008-C.E., dated 1-3-2008 and exemption Notification No. 4/2006-C.E., dated 1-3-2006 for clearance of LABSA & Spent Sulphuric Acid in DTA respectively. We find that a clarification was issued vide F.No. DGEP/EOU/03/2007 dated 2-4-2008 by the Addl. Director General (EP) under C.B.E. & C., Department of Revenue, Ministry of Finance, Govt. of India, clarifying that the applicant could avail exemption Notification under Section 5A of the Central Excise Act, 1944 for the purpose of computation of CVD to be paid by EOU on the goods cleared in DTA. It is opined that the restriction on EOU for applying exemption issued under Section 5A of the Central Excise Act is for the purpose that EOU should not pay excise duty only as in the case of clearances from DTA units, unless so intended.
Applicant could able to make out a prima facie case for total waiver of pre-deposit of duty and penalty. Accordingly, the pre-deposit of duty and penalty is waived and its recovery stayed during the pendency of the appeal - Stay granted.
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2012 (4) TMI 522 - CESTAT BANGALORE
CENVAT CRedit - whether the latter could claim CENVAT credit on certain capital goods (cylinders used as dies by the assessee’s job worker) which were directly dispatched by the supplier to the job worker at the instance of the respondent(assessee) - Held that:- condition of return of capital goods within 180 days is not applicable to jigs, fixtures, moulds and dies. This finding is based on para-5 of the condition of allowing CENVAT credit laid down in CBEC’s Central Excise Manual. I have also perused para-5 ibid and have found the above finding of the Commissioner(Appeals) to be well founded. It is also noticeable that there is no specific challenge to the above finding of the Commissioner(Appeals), in the present appeal of the Department. As regards the claim of the appellant that physical removal of the capital goods from the respondent’s factory to the job worker’s premises is a mandatory condition, I find that this claim has not been substantiated. CENVAT credit on the capital goods cannot be denied to the respondent on the ground that the capital goods were not brought into their factory before they were sent to the job worker. The learned Commissioner(Appeals) has found that the respondent had paid processing charges and duty on cylinders and these cylinders were used by the job worker for printing labels for the respondent - Decided against Revenue.
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2012 (4) TMI 521 - CESTAT AHMEDABAD
Denial of refund - Refund frozen by the assessee - lower authorities have held that assessee cannot be granted refund in cash, as the assessee’s factory has closed down and there is no provision for refunding the amount in cash for such freezing amount in RG23 Part-II - Held that:- Madvat law has codified procedure for adjustment of duty liability against Modvat Account. That is required to be carried out in accordance with law and unadjusted amount in not expressly permitted to be refunded. In absence of express provision to grant refund, that is difficult to entertain except in the case of export. There cannot be presumption that in the absence of debarment to make refund in other cases that is permissible. Refund results in outflow from treasury, which needs sanction of law and an order of refund for such purpose is sine qua non. Law has only recognized the event of export of goods for refund of Modvat credit as has been rightly pleaded by Revenue and present reference is neither the case of otherwise due of the refund nor the case of exported goods. Similarly absence of express grant in statute does not imply ipso facto entitlement to refund. So also absence of express grant is an implied bar for refund. When right to refund does not accrue under law, claim thereof is inconceivable. Following decision of Steel Strips vs. CCE, Ludhiana [2011 (5) TMI 111 - CESTAT, NEW DELHI] - Decided against assessee.
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2012 (4) TMI 520 - CESTAT AHMEDABAD
Confiscation of the goods - Goods lying unaccounted in the factory premises - Shortage in stock - Held that:- from the statements recorded of the various responsible persons of the appellant company that they have clearly indicated in reply to the show cause notice as well as during the statements recorded, that the Zinc Metal was issued for manufacturing of the final products but inadvertently was not recorded in the RG23 Part-I register. It is also seen that the charge of the department is of clandestine removal of such Zinc Metal from the factory premises. For such charge, the Revenue has not adduced any corroborative evidence of clandestine removal - In the absence of any corroborative evidence of clandestine removal, duty demand cannot be made on the presumptive grounds, either for removal of inputs as such or on the presumptive ground of manufacturing final products from the said goods. Accordingly, the demand of duty on the short found goods is unsustainable.
Goods were recorded in their private records which is evident from the fact that they have been utilizing and declaring the goods to the banks as work in progress. I find it so from the statement submitted by the learned counsel before the Tribunal as regards work in progress for the month ending 30 June 2008 and in the said statement Zinc Residue and Zinc Horn is shown as WIP to the extent they were found excess during visit of officers. If the goods are in work in progress, the same cannot be called as final products. If that be so, the goods found in excess, in my considered view, cannot be held as offending goods as they have not reached the stage of recording in the RG-1 register - Decided in favour of assessee.
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2012 (4) TMI 519 - CESTAT NEW DELHI
Modification of stay order - Waiver of pre deposit - Non-payment of NCCD arising out of utilization of Cenvat credit - Held that:- legal position that machinery provisions do not exist for collection of NCCD short levied was not brought to the notice of the Bench when the stay petition was argued on 12-12-2011. Since this is a legal position which was not considered while passing the order and on consideration of the legal position, we are of the view that there is a prima facie case for waiver of pre-deposit of interest arising from the impugned order since the cenvat availed has resulted in short levy of NCCD - Stay order modified.
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2012 (4) TMI 518 - CESTAT AHMEDABAD
Penalty - Held that:- opted for special procedure as provided under Rule 15 of Central Excise Rules, 2002 but have belatedly filed the declarations, as required under Notification No. 17/2005. It is undisputed that appellant has cleared the final products on discharge of duty liability, according to the calculations under the notification. The penalty is imposed on the ground that appellant has not filed declarations in time and hence violation of the provisions of Rule 25 of the Central Excise Rules, 2002. In my considered view, the appellant having cleared their excisable products on payment of duty has followed the provisions of notification, despite filing the declarations belatedly. This being the case, in my view, the appellant being visited with the penalty seems to be unwarranted - Decided in favour of assessee.
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2012 (4) TMI 517 - CESTAT BANGALORE
Duty demand - Differential duty - Receipt of advances - Held that:- The appellant has not even made an attempt to show that the advances received by the respondent from Sigma had a bearing on the assessable value of the goods. No nexus between the two has been established - The duty paid by the respondent on the assessable value based on the agreed price is in order and no further amount of duty is liable to be paid - Decided against Revenue.
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2012 (4) TMI 516 - CESTAT AHMEDABAD
Availment of cenvat credit - GTA services - Held that:- Commissioner (Appeals) has relied upon the Larger Bench decision of the ABB Ltd. to come to a conclusion that the appellants are eligible for the benefit of cenvat credit. This Larger Bench decision was challenged by the Revenue before the Hon’ble High Court of Karnataka which in its judgment as reported at [2011 (3) TMI 248 - KARNATAKA HIGH COURT] has upheld the view of the Larger Bench of the Tribunal - Decided against Revenue.
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2012 (4) TMI 515 - CESTAT AHMEDABAD
Refund claim - terminal handling charges and repo charges and transportation charges - Held that:- As regards terminal up handling charges and REPO charges, the very same issue had come before the Tribunal in the case of M/s. Macro Polymers Pvt. Ltd. v. CCE, Ahmedabad [2010 (6) TMI 257 - CESTAT, AHMEDABAD] this Tribunal had taken a view that refund of service tax paid on terminal handling charges and REPO charges were admissible under circumstances. As regards the contention of the Revenue regarding service tax paid for transportation, from the notification concerned it is seen that notification provides for refund of service tax paid on transportation of goods from the place of manufacture to ICD or from ICD to the port. In this claim the refund claimed is in respect of transportation from ICD to the port. There is no condition that the transportation cannot be by road - Decided against Revenue.
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2012 (4) TMI 514 - CESTAT NEW DELHI
waiver of pre deposit - Enhancement of penalty - Held that:- Commissioner (Appeals) who has neither looked into order passed by him two months back nor also was aware of the powers entrusted on an Appellate Authority envisaged by Section 35A of Central Excise Act, 1944. Proviso to sub-section (3) to Section 35A mandates that an order enhancing any penalty shall not be passed unless an appellant is given reasonable opportunity to show cause why such an order shall not be passed. It is elementary principle of jurisprudence that no one can be put into a situation adverse to the earlier situation without sanction of law. But such a golden principle was given go bye by an Appellate Authority who has been entrusted with power of redressal of grievance. It is surprising how authority has acted to the detriment of interest to justice - Decided in favour of assessee.
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2012 (4) TMI 513 - CESTAT MUMBAI
Waiver of pre-deposit of duty - Availment of CENVAT Credit in respect of the common input services which were used in or in relation to manufacture of exempted and excisable goods - Assessee filed a declaration showing the reversal of credit along with interest attributable to the credit in respect of inputs used in the manufacture of the exempted goods - Rejection of said declaration - Held that:- declaration filed by the applicant was rejected without affording an opportunity of hearing to the applicant. Further, we find that as per the provisions of Section 73 of Finance Act, 2010 in case the amount so paid is found to be less that the amount payable, the Commissioner has to call upon the assessee to pay the differential amount along with interest. From the order passed on the declaration, we find that the applicant has deposited an amount of ₹ 2,91,696/- whereas during the period in question, the applicant claimed credit of ₹ 20,97,979/- in respect of the common input services used in or in relation to manufacture of the goods. The verification report of the Dy. Commissioner of Central Excise show that the applicant requires to reverse the credit of ₹ 8,61,411/- attributable to the input services used in or in relation to manufacture of the exempted goods - rejection of the declaration filed under provisions of Section 73 of the Finance Act, 2010 is not sustainable - Matter remanded back - Decided in favour of assessee.
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2012 (4) TMI 512 - CESTAT NEW DELHI
Restoration of appeal - Held that:- bare reading of ECIL [2011 (2) TMI 3 - Supreme Court] judgment would show that vide this judgment Supreme Court has recalled its earlier order passed in ONGC (1991 (10) TMI 58 - SUPREME COURT OF INDIA) matters pursuant to which COD was created. In our considered view effect of the Supreme Court recalls the orders passed in ONGC matter (supra) is that these orders are no more in force. Thus, on the strength of these recalled orders the appellants cannot be denied their right to appeal against the impugned order. - Once it is apparent that merely on the ground of refusal of the permission by the Committee on Disputes, the appeal could not have been dismissed and yet the appeal was dismissed solely on the said ground, as rightly pointed out on behalf of the department, such an order deserves to be recalled. In fact, similar such orders have been recalled in some other matters also - appellant is entitled to his appeal being heard in accordance with law - Appeal restored.
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2012 (4) TMI 511 - CESTAT NEW DELHI
MODVAT Credit - when all other requirements are satisfied, whether the appellants can be denied the benefit of Modvat credit lying unutilized in the account of the company which merged with the appellants by the orders of the Hon’ble High Court, only because of the appellants’ failure to file declaration under Rule 57H of the Central Excise Rules and adjusting the Modvat credit in the account of merged company without seeking approval from the Commissioner - Held that:- this is a case of purely a technical lapse. Had the appellants submitted the declaration, obviously, they would have been granted approval to adjust the Modvat credit available in the account of M/s. Amar Polyfab P. Ltd. Not only this, the appellants had intimated the department promptly about the merger, they obtained an amended registration certificate and they also wrote a letter on 14-10-1994 requesting that the declarations, classification lists, price declarations and other documents filed by M/s. Amar Polyfab P. Ltd. may be treated as the declarations/documents filed by M/s. Indra Polyfab P. Ltd. w.e.f. 12-10-1994. Though above noted communication is not in the form prescribed under Rule 57H but it supplies all necessary information to the department. It is undisputed that adjustment of Modvat credit by M/s. Amar Polyfab P. Ltd. was done after 14-10-1994. Therefore, we are of the view that this is a case of technical lapse for which the appellants cannot be penalized - Decided in favour of assessee.
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2012 (4) TMI 510 - CESTAT AHMEDABAD
Denial of benefit of abatement - Notification No.17/2007-CE dated 01.03.07 - Held that:- On perusal of Notification No.17/2007-CE dated 01.03.07 under which the appellant has sought permission for functioning, prima-facie does not indicate any abatement to be granted to the appellant. In view of this, I find that the first appellate authority was correct in directing the appellant to deposit the entire amount of the duty liability for hearing and disposing the appeal. I do not find any reason to interfere in such an order. Accordingly, I direct the appellant to deposit the amount of Rs. Rs.3,70,800/- within a period of eight weeks from today and report compliance on 04.6.12 to the first appellate authority. The first appellate authority on such compliance being reported, will restore the appeal to its original number in its records and dispose the same by recording the findings on merits of the case, after following principles of natural justice - Decided in favour of assessee.
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