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Case Laws
Showing 381 to 400 of 924 Records
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2011 (9) TMI 879
Whether the lower rate of tax applicable under notification dated July 23, 1997 issued under the H.P. GST Act, 1968 to give concession to small-scale industries only, would automatically qualify to the lower rate applicable generally for the purpose of section 8(2A) of the CST Act, 1956 and the Explanation given thereunder?
Whether the dealer is not required to submit the mandatory C forms to claim the concessional rate of tax?
Whether the provision of the H.P. GST Act, 1968 to claim exemption from tax generally or subject to tax generally at a lower rate would apply automatically under the CST Act and the Explanation given to section 8(2A) of the CST Act, 1956 is to be taken as nonexistent?
Held that:- In all fairness, learned Senior Additional Advocate-General, appearing on behalf of the State (Excise and Taxation Commissioner, Himachal Pradesh), is not in a position to controvert the submissions advanced by Mr. Khanna, learned senior advocate, for and on behalf of the respondent. In these facts and circumstances, the STR in question, being devoid of legal force, is accordingly dismissed without answering or adjudicating the substantial questions of law, indicated above.
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2011 (9) TMI 878
Respondent manufactured tools and dies for a customer and used the same in their own factory for manufacture of components for the same customer - Respondent recovered the price of such tools and dies from the customer by raising a commercial invoice - Respondent was availing the benefit of service tax paid on GTA services for outward transportation of their finished goods - Commissioner (Appeals) in the impugned order has held that respondent need not pay duty on tools, dies and fixtures and Cenvat credit is admissible - Held that:- As regards duty, liability on tools, dies and fixtures, Notification No. 67/95-C.E., dated 16-3-1995 exempts capital goods as defined in Cenvat Credit Rules, 2004 manufactured in a factory and used within the factory of production. The notification does not speak of any ownership. It is an unconditional exemption which provides exemption to capital goods manufactured in a factory and used within the factory - Once goods are manufactured and used in the same factory, the notification squarely applies - Following the decisions of the Tribunal in the case of BPL Electronics Ltd. v. CCE, Bangalore reported in [1994 (3) TMI 190 - CEGAT, NEW DELHI], Elcon Clipsal India Ltd. v. CCE, Ahmedabad reported in [2002 (9) TMI 140 - CEGAT, COURT NO. II, NEW DELHI] - Decided against Revenue.
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2011 (9) TMI 877
Waiver of pre-deposit - CENVAT Credit - Penalty under Rule 25 - Whether any penalty was liable to be imposed on the party under Rule 25 - Held that:- Prima facie, only one of the clauses (a), (b), (c) and (d) has a nexus with Section 11AC and the same is clause (d) which reads thus : “contravenes any of the provisions of these rules, or the notifications issued under these rules, with intent to evade payment of duty”. Therefore, if a manufacturer, producer, registered person or registered dealer, as the case may be, is found to have contravened any of the Central Excise Rules or any of the Notifications issued under those rules, with intent to evade payment of duty, he will attract a penalty under Rule 25 subject to the provisions of Section 11AC. In my view, this would only mean that, if a penalty has already been imposed on the party under Section 11AC, no further penalty shall be imposed on him under Section 25 on the ground of the contravention mentioned in clause (d) ibid. In the present case, no penalty was even proposed under Section 11AC on the appellant. Rule 25, therefore, would get attracted, unaffected by Section 11AC, in the present case inasmuch as the appellant admittedly committed default of payment of duty and also chose to utilize CENVAT credit for payment of duty on their final product in contravention of Rule 8(3A). Prima facie, therefore, the appellant should make a pre-deposit - Decided against assessee.
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2011 (9) TMI 876
Classification of goods - CETH 2404.99 or 3306.10 - Shaheen Bhajki Masheri - Held that:- Following decision of Global Impex Versus Commissioner of Customs (Export), Nhava Sheva [2011 (7) TMI 933 - CESTAT, MUMBAI] - product “Shaheen Masheri” was correctly classified by the appellant under Chapter Heading No. 3306.10 - Decided in favour of assessee.
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2011 (9) TMI 875
Duty demand - Penalty - Confiscation of seized goods - Clandestine removal of goods - Onus to prove - Held that:- In a case of clandestine activity involving suppression of production and clandestine removal, it is not expected that such evasion has to be established by the Department in a mathematical precision. After all, a person indulging in clandestine activity takes sufficient precaution to hide/destroy the evidence. The evidence available shall be those left in spite of the best care taken by the persons involved in such clandestine activity. In such a situation, the entire facts and circumstances of the case have to be looked into and a decision has to be arrived at on the yardstick of ‘preponderance of probability’ and not on the yardstick of ‘beyond reasonable doubt’.
Claim that if they procured raw materials, then they might be eligible for MODVAT credit to the tune of about Rs. 1.25 crores may be true. We have already held that the appellants have indulged in suppressing production and clearing the same without payment of duty. However, the benefit of MODVAT claim cannot be considered and allowed in the absence of duty paying documents for procurement of the raw materials. It is not as if that the raw materials could be procured only from duty paying sector - Duty demand penalty imposed is reduced - Decided partly in favour of assessee.
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2011 (9) TMI 874
Duty demand - shortage found as well as the excess stock found in the factory - Redemption fine and penalty u/s 11AC - Held that:- appellant is not challenging the excess or shortage found and duty liability thereon. He submits that as regards excess quantity found in the factory, the same had not been removed from the factory but was only found to be in excess. Therefore, demand of duty in the adjudication order was not correct. The duty liability is attracted only when the goods are removed from the factory. After provisionally released, the goods were taken into daily stock account and cleared on payment of duty. Therefore duty demand in the proceedings amounts to double taxation of the same goods and as already submitted no duty could have been demanded on the excess quantity found in the factory - Accordingly, the duty demand on the quantity found in excess in the factory is set aside - Penalty and redemption fine is reduced - Decided partly in favour of assessee.
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2011 (9) TMI 873
Interest demand u/s 11AB - Penalty under Rule 25 of the Central Excise Rules, 2002 - Held that:- It cannot be gainsaid that the duty payments were made under Section 11A(2B) of the Central Excise Act. This is because each payment of differential duty at depot was tacit admission of short-payment of duty at factory gate. The duty short-paid was self-determined by the assessee and voluntarily paid before issuance of any show-cause notice to them - assessee was working under sub-section (2B) of Section 11A of the Act - assessee has a liability to pay interest on the differential duty under Section 11AB. But Explanation 3 protects them from penalty. Though explanation was inserted only in 2010, it is a clarificatory provision having retrospective effect and, therefore, the appellant can claim under it - demand of interest on differential duty is sustained and the penalty is set aside - Decided partly in favour of assessee.
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2011 (9) TMI 872
Deduction on account of trade discount, quantity discount, distribution expenses, turnover tax, interest on receivables, breakages in their price declaration - Held that:- in the respondents’ own case [2011 (4) TMI 544 - CESTAT, MUMBAI], for the earlier period, the Tribunal has allowed the claim of the respondents for free replacement of breakages and the said order has been accepted by the Department - in respondents’ own case, the issue has been decided in favour of the respondents and the same has been accepted by the Department. Therefore, the principles of res judicata is applicable and it is no doubt that after the decision in the case of M/s. Surya Roshni (2000 (9) TMI 71 - SUPREME COURT OF INDIA) the respondents are not entitled to deduction on account of free replacement of breakages. As the principles of res judicata is applicable in the case of the respondents - Decided against Revenue.
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2011 (9) TMI 871
Confiscation of goods - raw materials found stored in the adjoining godown of the factory premises - Held that:- Admittedly there was no shortage or excess of raw materials in the factory of the appellants at the time of visit of the officers. The raw material which stands confiscated by the authorities below was being stored in an adjoining godown of the appellants. Admittedly, the same has not reached the factory premises and the appellants had not availed the credit in respect of the same. The lower authorities by referring to the provisions of Rule 25, have imposed penalty upon the appellants under Rule 26. On going through Rule 25, I find that neither of the sub-clause of said rule gets invoked.
The lower authorities have not referred to any provision of law requiring the assessee to account for the raw materials which might have been purchased by him and stored outside the factory premises of the appellants. I do not find any justifiable reason to either confiscate the said seized raw materials or to impose penalty upon the appellants. Accordingly, the impugned order are set aside - Decided in favour of assessee.
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2011 (9) TMI 870
Duty demand - Penalty - Commissioner set aside demand and penalty - Remand order had not been implemented inasmuch as cross-examination was not given - Held that:- submission of Shri C.N. Ramesh is crucial for the confirmation of the demand against the appellants and, therefore, he should have been allowed to be cross-examined - Be that as it may, the fact remains that the direction given in the remand order by the Tribunal was not implemented for whatever reason. The remand order of the Tribunal does not stand modified in any manner. Therefore, the Commissioner (Appeals) is correct in his finding that non-implementation for the remand order has resulted in violation of the principles of natural justice - Decided against Revenue.
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2011 (9) TMI 869
Modification of Final Order - Setting aside of penalty order not mentioned in final order - allegation of suppression of facts attracting the larger period for demand of duty was held not sustainable - Held that:- The final order passed by this bench indicates that the penalty-related issue was not debated, nor in fact was it open to debate. This was because the findings of the learned Commissioner (Appeals) were correctly understood by the bench and it was clearly held that the assessee was not to be penalized where the allegation of suppression of facts, levelled against them, was set aside by the Commissioner (Appeals) and that view was not appealed against by the Revenue. Learned Commissioner (Appeals) had clearly held that the allegation of suppression of facts was not sustainable in the facts and circumstances of the case and he did not direct the lower authority to impose any penalty on them consequent upon requantification of duty demand - Modification allowed.
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2011 (9) TMI 868
Interest on delayed refund - Unjust enrichment - Held that:- claim for refund was filed on 26-3-2002 and the legal position is that the three months’ period for grant of refund is to be calculated from the date of making an application for refund and not from the date of sanction subsequently. This is the view taken by the Tribunal in several cases including that of the same assessees as seen from - [2008 (3) TMI 191 - CESTAT, CHENNAI]. Since the refund was sanctioned only in Oct.’10, while the claim for refund was made on 26-3-2002, there is no dispute that there is an inordinate delay in grant of the refund, thereby justifying the assessee’s claim for interest on the refund amount for the period from 26-6-2002 to 29-10-2010 (i.e., from the expiry of three months from the date of filing the refund claim till the date of payment). I, therefore, set aside the impugned order as I hold that the assessees are entitled to interest for the period from 26-6-2002 to 29-10-2010 - Decided in favour of assessee.
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2011 (9) TMI 867
Duty demand - Circular No. 306/22/97-CX., dated 20-3-1997 - Exemption under Notification No. 214/86-C.E., dated 25-3-1986 - Held that:- Circular No. 306/22/97-CX., dated 20-3-1997states, that duty liability is dischargeable by manufacturer of final goods and not by job worker if the goods are received for job work under Rule 57F(4) of Central Excise Rules, 1944. The Circular is subordinate to the legislative mandate incorporated in Notification. Therefore, the Circular is to be read in same spirit as the law requires. When the appellant claims to be benefited from Circular the date of effect of Circular is 20-3-1997. The appellant operated for the year 1993-94, we are unable to extend the benefit claimed by appellant in terms of Circular since circular deals with no Cenvat credit enjoyable by a Job Worker where duty liability is of manufacturer - Intention of the legislature when conveyed from a specified date that cannot be read as to have retrospective effect - Following decision of C.C.E v. Sunwin Technosolution Pvt. Ltd. [2010 (9) TMI 71 - SUPREME COURT OF INDIA] - Decided against assessee.
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2011 (9) TMI 866
Duty demand - suppression of facts - misdeclaration with intent to evade duty - Held that:- There is no finding as regards the nature of suppression and how provisions of Section 11AC are attracted. The Joint Commissioner in his order-in-original has relied upon the circular issued vide No. 223/57/96-CX., dated 21-6-1996 which laid down the detailed procedure for valuation of the petroleum products - Commissioner (Appeals) has observed that the fact that appellant was not including the same are not brought to the notice of the Department. Further he also relies upon the circular issued by Board No. 354/81/2000-TRU, dated 30-6-2000 to support his contention that in the transaction value any amount which is paid or payable or on behalf of the assessee is to be included but as submitted by the ld. Counsel, there are several decisions relating to the period when Administrative Price Mechanism was followed holding that in view of the Administrative Price Mechanism, the transaction adopted by the Petroleum companies as per the Government directives has to be accepted. This is because in Administrative Price Mechanism the Government determines the transaction value and the margins at different levels with all the relevant issues. Oil marketing companies did not have powers to make alterations. When the price was determined by Government, it would have been unfair to consider other issues - in this case suppression of facts or misdeclaration with intent to evade duty have not been established for imposition of penalty on the assessee - Decided in favour of assessee.
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2011 (9) TMI 865
Maintainability of appeal - Proper authorisation under law - Difference date of signing - Held that:- The defect appears at page 9 of appeal folder. One of the Commissioners signed the authorisation on 8-6-2009. The other Commissioner signed authorisation on 9-6-2009. This clearly shows that there was no committee on either of the two days by the signatories. Such a cause makes the Revenue non suiter - Such an irregularity by public authorities causes peril to public revenue - Decided against Revenue.
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2011 (9) TMI 864
Waiver of pre-deposit of duty - Duty on blank CDs alleged to have come into existence prior to their being recorded - Case of the Department is entirely based upon a report of the Chartered Engineer - Held that:- The Department has interpreted the above report to mean that the blank CDs first come into existence and stamper data get transferred from stamper to disc under manufacture. However, the same Chartered Engineer has clearly stated further in his report that nowhere in the process blank CDs are produced/created in the manufacture of recorded audio, video CDs ROM with loaded software. The portion of the report relied upon by the Department is that the data gets transferred from the stamper to disc under manufacture. However prima facie the report cannot be read so as to mean that first blank CDs come into existence on which CDs recording subsequently emerges. We, therefore, find that the assessee has made out a strong prima facie case for unconditional waiver and accordingly, dispense with the pre-deposit of the amount in dispute (duty, interest and penalties) and stay recovery thereof during pendency of the appeals - Stay granted.
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2011 (9) TMI 863
Waiver of pre deposit - Held that:- SKO refilled by them was contaminated and had flash point below 20.5 degree Centigrade and therefore it could not be cleared as such. It was indicated that it would be mixed with the crude and processed. The Department simply chose to reply saying that they can undertake reprocessing and no permission is required. Even for coming to the conclusion the reprocessing did not amount to manufacture, other than the internal correspondence indicating that SKO was to be reprocessed, no evidence has been shown to us to show that SKO was not mixed with crude and the name does not matter and as regards the document, no doubt it is called invoice but according to Rule 9 of Cenvat Credit Rules the document has to contain the essential details. If conversion/Processing of crude into SKO amounts to manufacture, once SKO is mixed with crude, SKO looses its identification and becomes part of crude. Hence in our opinion processing amounts to manufacture. Proper officer is required to look into the correctness of availment of credit and utilization of all the inputs. This aspect has not been considered. Under these circumstances we consider that appellant has made out a prima facie case for waiver of pre-deposit and for grant of stay, recovery of dues during the pendency of the appeal - Stay granted.
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2011 (9) TMI 862
Availment of CENVAT Credit - benefit of credit in terms of Rule 16 of the Central Excise Rules, 2002 - Receipt of so-called non-marketable/non-saleable cigarettes returned by their own sales offices only - Held that:- In the face of the clear language of the above rule, the finding of the Commissioner that very first condition for eligibility of credit on returned goods is that the goods must be usable and used as inputs in the manufacture of finished goods is prima facie not tenable. Further, in the present case, a large percentage of tobacco (obtained by ripping open returned cigarettes) is used along with fresh tobacco in the manufacture of fresh cigarettes. Thus, prima facie, the assessees are entitled to credit in terms of Rule 16 and the duty demand is prima facie not sustainable in the light of Rule 16 and in the light of the decision of the Tribunal in Supreme Industries Limited v. CCE, Chandigarh reported in [2005 (7) TMI 164 - CESTAT, MUMBAI] and Hindalco Industries Limited v. CCE, Belapur reported in [2007 (6) TMI 35 - CESTAT, MUMBAI] - Stay granted.
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2011 (9) TMI 861
Denial of CENVAT Credit - Claim of steel doors as Pollution Control Board - Held that:- Steel doors cannot be considered as an input for medicines, when such doors are used in the store rooms where medicines are stored and have no role in the manufacturing process. I also find that the claim before the Tribunal that steel doors should be considered as a Pollution Control Device is not at all sound. Firstly, the Pollution Control Devices are listed under the inclusive definition of “Capital Goods”.
Schedule ‘M’ to the Drugs and Cosmetic Rules, 1945, which deals with good manufacturing practices and requirement of premises etc., for pharmaceutical products stipulates that in aseptic areas, doors should be of non-shedding material, wooden doors shall not be used. It also states that doors should be made preferably of aluminium or steel material. The same rule also requires walls to be flat, furniture to be smooth and washable etc. Such stipulations do not make steel doors, a pollution control equipment, which has a different connotation. Hence, I am of the opinion that the appellants have not made out a case for availing credit on steel doors either as inputs or as capital goods - Decided against assessee.
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2011 (9) TMI 860
Waiver of pre deposit - exemption under Notification No. 56/2002-C.E., dated 14-11-2002 - appellants have issued credit notes to their customers in respect of damages to the goods - Held that:- They are paying excise duty to the tune of around Rs. 4 crores per annum. As such, the same assessable value is required to be adopted at the time of clearance of the goods. Compensation given to the buyers in respect of the goods damaged subsequent to the clearance cannot result in lowering the assessable value. We also note that the appellant’s buyers are the ultimate consumers of the goods and no Modvat credit is being availed by them - whatever duty paid by the appellants is refunded to them which is again used for payment of duty on the fresh final product. As such, it can be safely concluded at this interim stage that the entire excise is revenue neutral - we hold that the appellants have a good prima facie case in their favour so as to allow the stay petitions unconditionally - Stay granted.
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