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Showing 321 to 340 of 1167 Records
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2012 (7) TMI 855
Tax on escaped turnover - Held that:- When once the assessee opted for composition under section 17(6), the tax is payable on the total turnover and the total turnover includes consideration under both the agreements and therefore the revisional authority was justified in levying tax on the escaped turnover on the consideration mentioned in the subsequent agreement. It is in accordance with law. In that view of the matter, the order passed by the KAT is erroneous and contrary to the statutory provisions and also the law laid down by this court. Appeal is allowed. The order passed by the KAT which is impugned in this revisional petition, is hereby set aside. The order of the revisional authority is restored.
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2012 (7) TMI 854
Whether uniform levy of tax under section 4(1)(c) does not attract in the instant case as it is divisible contract and that for cable wires supplied in works contract, attracts lesser duty at four per cent. and not uniform rate at 12.5 per cent. is bad in law?
Held that:- Section 4(1)(c) of the KVAT Act was incorporated by amendment with effect from April 1, 2006 when the law specifically authorizes the State to levy uniform tax. It may not be within the competence of the taxing authorities to enter into contract to negate the effect of section 4(1)(c) of the KVAT Act. Section 4 is the charging section, which lays down different tax rates for the goods mentioned in Schedules II to IV.
In the case of Gannon Dunkerley [1992 (11) TMI 254 - SUPREME COURT OF INDIA] it is categorically held that the State can legislate the law to levy uniform tax. The argument that such levy of uniform tax would be discriminatory and would be in variation with the tax imposed on the particular product if it is not deemed sale under the contract works, is untenable. When the Legislature empowers the taxing authority to levy uniform tax by section 4(1)(c), it is impermissible for the assessee to contend that some of the items supplied in the contract works constitute divisible contract and it should attract less tax is untenable. In that view, the question of law is answered in favour of the petitioner. Revisions allowed.
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2012 (7) TMI 853
Whether the finding of the Tribunal that the transport of goods was in the inter-State sale and not a branch transfer?
Whether the Tribunal was grossly erred in assessing the material on record and given perverse finding while setting aside the levy of penalty?
Held that:- The assessment of documentary materials by the Tribunal is essentially a question of fact. It is evident that the assessee has branch outlets in Bangalore. The assessee has been transporting the petroleum products to its branch outlets from Chennai regularly. The assessee is not permitted to sell the petroleum products from outlet other than the branch outlets. Therefore, the finding recorded by the Tribunal is sound and proper and that does not call for interference.
The substantial question of law is against the petitioner. Accordingly, the petition is dismissed.
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2012 (7) TMI 852
Waiver of pre-deposit - tribunal rejected rejected the stay application filed by the petitioner and the petitioner was directed to reverse entire Cenvat credit - Held that:- In the decision of the Punjab & Haryana High Court [2011 (2) TMI 231 - PUNJAB AND HARYANA HIGH COURT], the petitioner was BSNL, as in the present case, while disposing of the said petition, the Punjab & Haryana High Court granted complete waiver to the petitioner for the purpose of hearing of its appeal. - in view of the peculiar fact situation, the waiver application ought to have been allowed by the Tribunal. - stay granted.
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2012 (7) TMI 851
Issues Involved:
1. Whether the Tribunal erred in holding the revenue's case as based on surmises and conjectures?
2. Whether the Tribunal erred in requiring strict proof of evidence for establishing clandestine removal of goods by an SSI unit?
3. Whether the Tribunal erred in disregarding corroborative evidence connecting the respondent to the clandestine removal of goods?
Issue 1:
The first issue questions whether the Tribunal erred in considering the revenue's case as relying on surmises and conjectures despite the presence of substantial evidence procured during the investigation. The High Court is tasked with determining if the Tribunal's decision was erroneous in this regard. The evidence cited includes statements from individuals involved in illicit activities, documentary evidence like invoices and seized books of accounts, and expert opinions. The High Court is called upon to assess whether the Tribunal's characterization of the evidence as insufficient was justified or if it constituted a substantial error of law.
Issue 2:
The second issue revolves around whether the Tribunal erred in its requirement for strict proof of evidence to establish the clandestine removal of goods by a Small Scale Industry (SSI) unit through its group company. The High Court must analyze whether the Tribunal's insistence on stringent evidence for proving such removal was legally sound or if it amounted to a substantial error. The question of whether circumstantial evidence on record should have been sufficient to support the demand for duty from the respondent is central to this issue.
Issue 3:
The third issue challenges the Tribunal's decision to disregard corroborative evidence linking the respondent to the clandestine removal of goods without payment of duty. The High Court is tasked with evaluating the significance of corroborative evidence, such as statements from transport company drivers, expert opinions from reputable institutions like the Man Made Textile Research Association (MANTRA) and professors, in establishing the connection between the respondent and its group trading companies in the illicit activities. The High Court must determine if the Tribunal's dismissal of this evidence amounted to a substantial error of law.
This comprehensive analysis outlines the key issues raised in the legal judgment and provides a detailed breakdown of each issue for a thorough understanding of the case.
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2012 (7) TMI 850
Penalty - Whether penalty can be imposed upon the appellant under Rule 209A of the erstwhile Central Excise Rules, 1944 now Rule 26 of Central Excise Rules, 2001 in the facts and circumstances of the case - Held that:- Penalty has been imposed on the firm. The Tribunal [2010 (4) TMI 943 - CESTAT AHMEDABAD] has imposed penalty on the partner only on the ground that total amount of duty involved was approximately ₹ 88 lacs and equal amount of penalty has been imposed on the appellant firm. Therefore, penalty imposed on Mr. P.N. Shah, partner of the firm was on the higher side and it has reduced it to ₹ 10 lacs. Penalty of ₹ 87,96,398/- has been imposed on the firm under Section 11AC of the Central Excise Rules, 1944. It has been held by the Division Bench of Gujarat High Court in Commissioner of Central Excise v. Jai Prakash Motwani, [2009 (1) TMI 501 - GUJARAT HIGH COURT] that where no specific Rule is attributed to the partner in the firm, then once firm has already been penalised, separate penalty cannot be imposed upon the partner because a partner is not a separate legal entity and cannot be equated with employee of a firm. From the order of the Tribunal or other orders on record, we do not find that any specific role has been assigned as provided by Rule 26 of Central Excise Rules. Penalty has been imposed on the firm, no separate penalty can be imposed on its partner - Decided in favour of assessee.
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2012 (7) TMI 849
CENVAT Credit - Whether in the facts and circumstances of the case, the Tribunal is justified in holding that the duty paid on fuel is sufficient to satisfy the requirement of Rule 6(1) of Cenvat Credit Rules, 2004 even though, such fuel is used in the generation of electricity which in turn is being used in the factory for activities which are non-excisable - Held that:- It is not disputed by the appellant that electricity has been used in the factory premises by the appellant. No material has been brought on record by the learned counsel for the appellant to establish that electricity generated by the respondent is being used for township - Held that:- The question raised is with regard to electricity used within the factory premises of the respondent. The learned counsel for the respondent has placed reliance on the decision of the Apex Court in the case of Commissioner of Central Excise, Vadodara v. Gujarat State Fertilizers and Chemicals Ltd. - [2008 (7) TMI 61 - SUPREME COURT], wherein the Apex Court has held that admissibility on inputs used for generation of electricity or steam, used for manufacture of final products or for any other purpose, within the factory of production, credit was available. It is not disputed by the appellant that electricity has been used in the factory premises by the appellant. No material has been brought on record by the learned counsel for the appellant to establish that electricity generated by the respondent is being used for township - Decided against Revenue.
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2012 (7) TMI 848
Denial of rebate claim - export of the diaries, through merchant exporter, against CT-1, without payment of duty - refund of duty paid on excisable inputs used in the manufacture of the said diaries granted - Later on the reviewing authority found that, as the goods were exported under DEPB scheme, the rebate was not admissible - Commissioner rejected such contention - Held that:- goods were exported without payment of duty under CT-1. As such, the exporter suffered duty only at one stage i.e. at input stage. It is also undisputed fact that the respondent has availed DEPB benefit on export of their final product. DEPB benefit includes refund of duties suffered on account of duties of Customs and duties of excise. In this case, the applicant department has contested that the respondent did not use any imported inputs and hence, they have not suffered any Customs duty. This fact has not been controverted by respondent by way of any incontrovertible evidences. Hence, the export of goods has suffered only duties of excise paid on inputs. Since, the respondent has availed DEPB benefit, it can be logically inferred that they have been refunded duties of excise suffered on inputs by way of DEPB benefit.
The intention of any export related scheme is to promote export of goods by ensuring that all the duties suffered on such exported goods are refunded. Having said so, it is also not intention of such export oriented scheme to extend double benefit of exporter. In this case, the respondent having availed DEPB benefit cannot be allowed to avail rebate of duty paid on inputs, as the same would amount to double benefit.
Government notes that the applicant M/s. Hi Speed Offsets, a manufacturer has exported goods through merchant exporter against CT-I without payment of duty. The said exports are made under bond without payment of duty in terms of provisions of Rule 19 of Central Excise Rules, 2002. But the applicant manufacturer has claimed input rebate claim under Rule 18 of Central Excise Rules, 2002 r/w Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004.
For claiming rebate of duty paid on excisable goods or duty paid on materials used in the manufacture or processing of such goods, the provision of Rule 18 Central Excise Rules, 2002 r/w Notification No. 19/2004-C.E. (N.T.) or 21/2004-C.E. (N.T.) both dated 6-9-2004 are to be followed. At the same time, if the exporter does not want to export goods under claim of rebate under Rule 18 ibid, he has the facility of exporting goods under bond without payment of duty under Rule 19 of Central Excise Rules, 2002.
Goods were exported under the provisions of Rule 19 of Central Excise Rules, 2002 and therefore the benefit of rebate claim under Rule 18 ibid is not admissible in this case. it is a settled law that ordinary and natural meaning of words has to construed and adhered to as per principles laid down by Hon’ble Supreme Court in the case of M/s. I.T.C Ltd. v. CCE - [2004 (9) TMI 103 - SUPREME COURT OF INDIA]. Further it is also settled law that statutes as clarified/elaborated for application by CBEC circulars are binding on Revenue/departmental officers as held by Hon’ble Supreme Court in the case of Paper Products Ltd. v. CCE - [1999 (8) TMI 70 - SUPREME COURT OF INDIA] and in the case of CCE, Vadodra v. Dhiren Chemicals Industries Ltd. - [2002 (2) TMI 115 - SUPREME COURT OF INDIA] - Revision allowed.
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2012 (7) TMI 847
Waiver of pre-deposit - Valuation of goods - Distribution of free samples - Held that:- As far as the assessee is concerned, the impugned products are cleared on sale for consideration. The transaction value is available, the valuation based on Section 4A of identical products need not be adopted - Therefore, there shall be waiver of pre-deposit of dues as per the impugned order and stay of recovery thereof till the disposal of the appeal - Stay granted.
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2012 (7) TMI 846
Refund of Education Cess - Notification No. 56/2002-C.E., dated. 14-11-2002 - Held that:- From plain reading of the Notification No. 56/2002-C.E., it is clear that this notification issued under Section 5A(1) of Central Excise Act, 1944, Section 3(3) of Additional Duties of Excise (Goods of Special Importance) Act, 1957 and Section 3(3) of Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 exempts the duties levied by these three acts only to the extent as mentioned in this notification. This notification does not mention the Education Cess levied under Finance Act, 2004 and Finance Act, 2007 as being covered by this exemption.
When Notification No. 123/74-C.E dated 1-8-74 and No. 27/81-C.E. dated 1-3-81 issued under Rule 8(1) of Central Excise Rules, 1944 (corresponding to Section 5A of Central Excise Act, 1944) exempted the goods “from the duty leviable thereon”, according to well recognised canons of construction of statutes, these exemptions should be read as granting exemption only in respect of duty of excise payable under the Central Excise Act, 1944 and the exemption cannot be extended to any other duty leviable on the goods under some other Act. Accordingly, the Apex Court in this case held that these exemption notifications would not cover the Special Duties of Excise leviable under Finance Act, and Additional Duty of Excise, leviable on the goods under Additional Duties of Excise (Goods of Special Importance) Act, 1957 - Following decision of CCE, Jammu v. Jindal Drugs Ltd. [2009 (8) TMI 812 - CESTAT, NEW DELHI] - Decided in favour of Revenue.
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2012 (7) TMI 845
Denial of CENVAT Credit - Credit on Grid which has been installed in the factory premises, which receives electricity from Gujarat State Electricity Board and transmits the excess of electricity generated by them to the Gujarat State Electricity Board - Held that:- The certificate issued by the Executive Engineer, Dakshin Gujarat Vij Company Limited specifically states that the said Grid is used for receiving the electricity from the GETCO Grid and also injecting power into GETCO Grid. There being no dispute as to the fact that the appellant is using electricity received through such Grid for manufacturing of final products, we find that the appellant has made out a prima facie case for the waiver of pre-deposit of amounts involved. Application for waiver of pre-deposit of amounts involved is allowed and recovery thereof stayed till the disposal of appeal - Stay granted.
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2012 (7) TMI 844
Exemption under Notification No. 6/2006-C.E., dated 1-3-2006 - Revenue contends that appellant are not eligible for duty exemption under this notification, as the thermal power plant to which the supplies were made, cannot be called a power plant of capacity of 1000 MW or more, as it comprises of three turbines of 660 MW each, while exemption is available to a plant which generates 1000 MW or more from a single unit - Held that:- There is no dispute about the fact that the entire duty demand along with interest was paid by the appellant when the department pointed out to them that they are not eligible for exemption and this was done prior to issue of show cause notice and this fact had been intimated to the department. In view of this, in terms of the provisions of Section 11A(2B), no show cause notice is required to be issued and hence there was no question of imposing penalty on the appellant - Decided in favour of assessee.
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2012 (7) TMI 843
Condonation of delay - Held that:- Ordinarily the period of limitation for filing an appeal against the adjudication order is sixty days from the date of communication of order/decision to the party concerned. However, the proviso to Section 35(1) authorizes Commissioner (Appeals) to extend the period of limitation for a further period of thirty days if he satisfies that the appellant was prevented from presenting the appeal within sixty days by a sufficient cause - plea of the appellant is that appeal could not be filed within sixty days from the date of service of the order-in-original on the appellant as his Counsel was suffering from viral fever. The sickness of a lawyer or the party concern in our view is a sufficient ground for condoning the delay in filing of appeal. Just because the appellant did not produce the medical certificate of illness of his Counsel, in our view Commissioner (Appeals) was not justified in declining the request to condone the delay in filing of appeal. The Commissioner (Appeals) was expected to take liberal view of the matter instead of shutting the door of justice on the appellant by taking hyper technical view of the matter. Thus, under the circumstances, we find it difficult to sustain the order of Commissioner (Appeals) refusing to condone the delay of seven days in filing of appeal. Accordingly, the impugned order is set aside and the matter is remanded back to the Commissioner (Appeals) - Decided partly in favour of assessee.
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2012 (7) TMI 842
Waiver of pre-deposit of duty - Demand of differential duty - Non inclusion of amount received or collected by assessee from third party inspection charges - Held that:- appellant herein did not produce any evidence substantiating this claim as regards third party inspection being done at the behest of their clients right from the adjudicating authority level to till today. It is also on record that the Range Officer Incharge of the appellant’s factory had specifically sought for these documents which were not provided by the appellant - appellant having not produced the documents before the lower authorities and claiming that he has got the documents needs to be gone in to details by adjudicating authority. To ensure that appellant appear and produce the documents in respect of the claim that inspection charges which are charged by them to their clients are on their special request, we find that appellant needs to be put to some condition - Conditional stay granted.
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2012 (7) TMI 841
Demand of duty - Availment/utilization of MODVAT credit of CVD paid on HDPE granules - Imposition of penalty - Held that:- On 12-10-1995, the Central Excise Range Superintendent visited the appellant’s factory and conducted physical stock verification of the raw materials and also conducted a scrutiny of statutory records. A quantity of 4,725 Kgs. of HDPE granules of Indian origin was found in the factory and the same was noted in a mahazar; that no evidence of the imported raw materials having been received in the factory was also noted in the same mahazar. In the mahazar, it was also noted that the General Manager of the factory, who was present, stated that a quantity of 686 bags of imported HDPE granules had not been received in the factory but, nevertheless, Modvat credit was taken on that quantity also at the behest of the Management. The General Manager’s inability to produce documentary evidence of actual utilization of any part of the imported granules in the manufacture of HDPE bags was also recorded in the mahazar.
Department has not substantiated their case insofar as the MODVAT credit of Rs. 2,51,399.25 is concerned. The total credit taken by the party on the three consignments of HDPE granules covered by the three bills of entry is Rs. 3,63,319.95, out of which credit of Rs. 2,51,399.25 was found to have been utilized. The unutilized MODVAT credit is the difference between these two figures. At best, to this extent, the Revenue’s case can be accepted. In the result, the denial of Cenvat credit to the extent of Rs. 1,11,920.70 is upheld and the rest of the demand raised on the appellant is set aside. In the facts and circumstances of this case, the penalty imposed on the appellant is reduced to Rs. 7,500 - Decided partly in favour of assessee.
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2012 (7) TMI 840
Classification of goods - Capital goods - Whether the rails which were used by the respondent for moving stacker and reclaimer in their factory during the material period could be treated as capital goods falling under Rule 2(a)(A) of the Cenvat Credit Rules, 2004 - Held that:- The original authority found that rails were essential for the movement of the two machines viz. stacker and reclaimer which are used for stacking and spreading the lime-stone, one of the essential input used in the manufacture of cement (final product). The said machines were found to be classifiable under Heading 84.74 of the first schedule to the Central Excise Tariff Act and the rails were found to be accessories to these machines and accordingly classified as capital goods for the purpose of Cenvat Credit. These findings of the original authority were sustained by the first appellate authority. These concurrent findings of the authorities are not under challenge in the present appeal of the department - Decided against Revenue.
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2012 (7) TMI 839
Waiver of pre-deposit of duty - Clearance of packaged drinking water - Whether assessee can be called manufacture of packaged drinking water - Held that:- applicant is purchasing raw material from the market for the manufacture of packaged drinking water and the same is cleared to ABCTC and ABCTC is further selling to their customers. Therefore, we find merit in the contention of the applicant that ABCTC is not an institutional consumer. In these circumstances, the applicant has made out a case for total waiver of the dues. Pre-deposit of the dues is waived and recovery of the same is stayed during the pendency of the appeal - Stay granted.
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2012 (7) TMI 838
Denial of exemption from excise duty under S. No. 91 of Notification No. 6/2006-C.E., dated 1-3-2006 - Non production of certificate to show that the person to whom they were supplying the goods could have imported goods free of customs duty as per the provisions of Customs Notification No. 21/2002-Cus. at Sl. No. 217 - whether exemption can be denied for the reason that the necessary certificate has not been produced before clearance of the goods - Held that:- there is a justifiable reason to hold so because there can be some doubt about the time of production of certificate for excisable goods because the condition comes through adaption of condition prescribed in a customs notification. This case involves a substantial right of the appellant to claim an exemption intended for import substitution at competitive prices we are of the view that the exemption cannot be denied for the reason that the certificate is produced later. We have not verified the certificates in detail. We are remitting the matter to the adjudicating authority to cause verification whether the certificates produced later meet the requirement of the notification.
Exemption is available only in cases where necessary certificates to ensure its proper end-use is produced which has been done by the appellant only in the case of supplies to Reliance Industries Ltd. Oil India is refusing to give certificate that the goods were used for the specified purpose and the appellant has not made any effort to get such certificate from Jindal Power Ltd. So the inference is that the goods were not used for the purpose for which exemption is granted and the exemption is claimed for the sole reason that it fits into the description of goods as specified under S. No. 15 of list 12 of Customs Notification 21/2002-Cus.
When exemption is claimed without satisfying the conditions of the notification we are of the view that the demand invoking extended period of time will be maintainable and appropriate penalty will be leviable - exemption is extended in cases where the appellant is able to produce the necessary certificate as prescribed in the notification and explained above. The appellant shall produce such certificates before adjudicating authority for verification within 30 days of receipt of the order. In other cases duty demand is confirmed along with interest and penalty with option to pay 25% of the duty amount as penalty within 30 days of receipt of the order - Following decision of CCE v. Harish Silk Mills Pvt. Ltd. [2010 (2) TMI 494 - GUJARAT HIGH COURT] - CCE v. Dynaspede Integrated Systems Ltd. [2001 (8) TMI 231 - CEGAT, CHENNAI] - Decided partly in favour of assessee.
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2012 (7) TMI 837
Valuation of goods - Inclusion of 1% discount in assessable value - Department contends that 1% amount was not in the nature of trade discount under the provisions of Customs Valuation Rules read with Section 14 of Customs Act, 1962 - Held that:- The Agreement clearly distinguishes resellers and volume distributors. Resellers have been defined to be persons who are purchasing from volume distributors. These terms “resellers” and “volume distributors” are special terms used by the appellants in their Agreement. Prima facie, we agree with the submissions on behalf of the department that the activities of the so-called resellers/volume distributors have remained the same as in the previous case which has been decided against the appellant. The additional amount of 1% is extended to the volume distributors in view of their activities by way of helping the appellants by furnishing certain reports and market intelligence. We, prima facie, agree with the view of the department that the said amount represent remunerations for additional services rendered by the volume distributors/resellers. Since there is a deliberate change in the nomenclature relating to the dealers and the remuneration paid to them, prima facie, the invoking of extended period of limitation in the present case is also justified - Conditional stay granted.
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2012 (7) TMI 836
Waiver of condition of pre-deposit of duty demand - Availment of benefit of Cenvat credit under Cenvat Credit Rules, 2004 - Held that:- Admittedly the appellant has discharged his duty liability on 26-12-2008 though in contravention of Rule 8(3A) of Central Excise Rules by paying excise duty from his Cenvat credit account. However, fact remains that the entire duty liability stands paid to the department on 26-12-2008 i.e. much prior to issue of show cause notice. Thus at this initial stage taking into account the overall facts and circumstances of the case, we are of the view that it is fit case for waiver of condition of pre-deposit of duty demand, interest and penalty. The stay application is therefore allowed and pre-deposit of duty demand, interest and penalty is dispensed with and recovery thereof stayed - Stay granted.
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