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Case Laws
Showing 321 to 340 of 782 Records
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2012 (4) TMI 521
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
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
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
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
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
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
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
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
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
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
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
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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2012 (4) TMI 509
Reduction in penalty u/s 11AC - benefit of payment of 25% of Central Excise duty - Held that:- Since the assessee has not filed any appeal and is not disputing the order in appeal imposing penalty under Section 11AC, the order of the first appellate authority has to be upheld, as there is no dispute as to the fact that the amount of Central Excise duty which has been confirmed by the adjudicating authority was under the first proviso to Section 11A of Central Excise Act, 1944. At the same time I agree with the learned counsel’s submission that even if Section 11AC penalty is imposed, the benefit of payment of 25% of Central Excise duty which has been confirmed by the adjudicating authority, as provided under Section 11AC, should be extended to the appellant - Following decision of M/s. Akash Fashion Prints Pvt. Limited [2009 (1) TMI 113 - GUJARAT HIGH COURT] - Decided partly against Revenue.
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2012 (4) TMI 508
Waiver of pre deposit - Benefit of Modvat credit - Burden of proof - Held that:- It is well settled that the onus of establishing that the assessee is liable to pay excise duty is on the Department. Perusal of the adjudication order would show that it is not based upon a concrete evidence but on the assumption that the appellant must have taken Modvat credit in respect of the capital goods corresponding to the waste and scrap. There is nothing on record to indicate if the modvat credit account of the appellant was scrutinized before coming to the conclusion that the waste and scrap which are the subject matter of this appeal correspond to investment in capital goods i.e. plant and machinery relating to which modvat credit had been taken. In the absence of any such evidence, we find that the appellant has been able to make out a strong prima facie case for waiver of the condition of pre-deposit of the duty, interest and penalty. - Stay granted.
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2012 (4) TMI 507
Duty demand - Insurance charges collected from purchasers - Held that:- goods were sold by the appellants from the factory gate, which is the place of removal and delivery took place at the buyers end as per Section 4 of the Central Excise Act, 1944. In this connection I have perused the case laws of M/s. Escorts JCB Limited v. CCE, Delhi-II [2002 (10) TMI 96 - SUPREME COURT OF INDIA] cited by the appellants. I find that ratio thereof is squarely applicable looking to the facts and circumstances of the case. Moreover, Board vide its Circular No. 59/1/2003-CX., dated 3-3-2003 also clarified that insurance charges will not be includible in the light of the Hon’ble Supreme Court’s judgment. Therefore, the demand of Rs. 1,07,581.00 is not sustainable and same is set aside - Decided against Revenue.
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2012 (4) TMI 506
Waiver of pre deposit - Duty demand - Incorrect valuation of final products - Held that:- valuation is sought to be enhanced by the authorities, on the ground that the goods which are cleared by the appellants to their ICUs are sold by them on higher price. Learned adjudicating authority has proceeded on the ground that Rule 10 of Valuation Rules will apply. On perusal of the said Rule 10, we find that prima facie this Rule will not apply, as the said Rule talks about the arrangement of an assessee for sale of excisable goods, except to or through ICUs. In this case, we find that and it is undisputed that the appellant had sold their finished goods to independent buyers also and to their ICUs - valuation of the goods done by the appellants, even if Rule 11 of the Valuation Rules has to be applied, would lead to, prima facie, to the transaction value of the goods sold by the appellants to the independent buyers. In sum, we find that the appellants have made out a prima facie case for the waiver of pre-deposit of amounts involved - Stay granted.
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2012 (4) TMI 505
CENVAT Credit - Printing of bags - Held that:- The case of the department is that the process undertaken by the appellant unit i.e. printing of polypropylene woven bags does not amount to manufacture and hence they are not eligible for Cenvat credit. However, Rule 3(5) of the Cenvat Credit Rules, 2004 provides that when the Cenvat credit availed inputs are cleared as such, an amount equal to the Cenvat credit required to be paid. Then even if the department’s stand that process undertaken by the appellant does not amount to manufacture is accepted, this would have to be treated as clearance of Cenvat credit availed input as such. Since the appellant have paid duty on the printed P.P. bags the Cenvat credit availed would have to be treated as reversed. In view of this, impugned order demanding the Cenvat credit along with interest and imposed penalty on the appellant is set aside - Decided in favour of assessee.
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2012 (4) TMI 504
Quantum of penalty under Rule 25 - Held that:- The show cause notice does not specify the nature of breach of law alleged whether was covered by any of the clauses appearing under Rule 25 of Central Excise Rules, 2001. In absence of specific charge for levy of penalty, it is difficult to appreciate the levy itself. When the show cause notice did not provide foundation levelling appropriate charge to impose penalty which is independent of scheme of levy of duty, the assessee has right to know the charge to defend. But no circumstance was provided by the show cause notice to appellant to lead evidence and defend - Without prejudging the matter, in all fairness, it can be said that the appellant should get relief against imposition of penalty only. Insofar as levy of penalty is concerned, the impugned order to that extent is set aside - Decided partly in favour of assessee.
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2012 (4) TMI 503
Penalty u/s 78 - Loading and unloading of washed coal as well as rejected coal - Business Auxilliary service - Held that:- Rajasthan High Court in S.B. Construction Corporation v. CCE - [2006 (8) TMI 28 - HIGH COURT OF JUDICATURE FOR RAJASTHAN (JODHPUR)] ruling that goods when moved within a factory cannot be considered as cargo. This is applicable for shifting of goods within mines also. Further the scope of the entry for cargo handling service was under dispute in the case of many assessees and there was bona fide reason for the Respondent to believe that such tax was not payable. A large number of decisions of the Tribunal in favour of assessees similarly situated as the present Respondent also supports the case of Respondent. At this stage the Respondent is not challenging the tax amount confirmed. The appeal filed by Revenue praying for imposition of penalty, only is under consideration - this is a fit case for waiver of penalty invoking provisions under Section 80 of the Finance Act, 1994 - Decided against Revenue.
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2012 (4) TMI 502
CENVAT Credit - Denial of refund claim - Held that:- There is confusion about the product involved in the instant case. Both in the order of the adjudicating authority and the appellate authority, they have referred to the goods as potable alcohol (rectified spirit) as an exempted item. Chapter Note 4 to Chapter 22 states “This Chapter does not cover alcoholic liquors that for human consumption”. Further entry 84 of List 1 (Union List) the Seventh Schedule to the Constitution itself makes it clear that alcoholic liquors for human consumption is outside the purview of Central Excise levy. Thus, potable alcohol is not an excisable item at all. Thus the reference to potable alcohol as an exempted item by the lower adjudicating and appellate authorities is totally incorrect. Consequently, no Cenvat credit of duly paid on molasses can be taken under the Cenvat Credit Rules, 2004, in respect of molasses used in the manufacture of potable alcohol, as the Central Excise Act, 1944 and the Cenvat Credit Rules apply to excisable goods and not to non-excisable goods. Availment of Cenvat credit was void ab initio. - Unless all the relevant facts mentioned above are ascertained, the quantum of eligible refund can not be determined. Therefore, the matter is remanded back to the original adjudicating authority for fresh consideration after ascertaining all the relevant facts and thereafter, pass an appropriate order in accordance with law - Decided in favour of assessee.
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