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Case Laws
Showing 441 to 460 of 851 Records
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2011 (6) TMI 602
Assessable value – place of removal – cost of transportation – claim of assessee that they are selling these goods at a uniform price all over India and, therefore, they are eligible for deduction towards cost of transportation from the factory to depot - Held that:- when the goods are sold at a uniform price, equalised freight charges are deductible from the normal price and no duty is chargeable on the same., department's appeals are rejected being devoid of merits. [VIP Industries (2003 - TMI - 46580 - SUPREME COURT OF INDIA - Central Excise)]
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2011 (6) TMI 601
Captive consumption of the goods - inclusion notional profit in the assessable value – Held that:- Tribunal has categorically held that the price of comparable goods manufactured by Gujarat State Fertilizers & Chemicals Ltd. and purchased by the respondent during the relevant period was not higher than the price at which the respondent paid duty and this comparable price ought to be applied by invoking Rule 6(b)(i). Therefore, the matter was remanded back to the Commissioner (Appeals) to examine the issue, as directed. Commissioner (Appeals) has followed the direction of this Tribunal and thereafter he has arrived at a decision that the matter has to be examined by the adjudicating authority by applying Rule 6(b)(i) of the Central Excise (Valuation) Rules and to arrive at a correct assessable value. appeal is premature as the assessable value has not been ascertained till date. Revenue's appeal is rejected
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2011 (6) TMI 600
Rebate claims - order of the revisionary authority granted rebate - Rule 18 of the Central Excise Rules, 2002 provides that when any goods are exported, the Central Government may by notification grant rebate of duty paid on such excisable goods. Whether duty on the excisable goods has, in fact, been paid to be determined. According to the Excise Department, the duty has not, in fact, been paid. The duty was sought to be paid by utilising Cenvat credit. The Cenvat credit was accumulated on the basis of duty paid documents brought up in collusion with nonexistent or bogus firms. These allegations would have to be enquired into by the adjudicating authority. We are, therefore, of the view that the proper course of action for the revisional authority would have been to allow the order of remand to stand so as to enable the First Respondent to have a full and proper opportunity of establishing its case for the grant of rebate. Instead the revisional authority has purported to make a finding of fact in the absence of virtually any material whatsoever and in the face of the case of the Department that the chain of events in the present case will show a fraudulent attempt to evade the payment of duty. Hence, we are of the view that the order passed by the revisional authority is unsustainable. - matter remanded back.
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2011 (6) TMI 599
Reversal of cenvat credit – penalty - inputs which has gone into manufacturing/production of electricity which was consumed in the residential colony/guesthouse/schools/ hospitals etc. - Held that:- in the case of Grauer and Weil (1994 - TMI - 43855 - SUPREME COURT OF INDIA - Central Excise) any premises including the precincts thereof" in section 2(m) of the Central Excise Act are wide enough to cover any activity carried on within the licensed premises supply of electricity to the residential complexes situated within the factory premises are neither connected with or related to the production of the final products. - order is held as correct and legal to the extent it confirms the demand of reversal, but is incorrect in upholding the penalty.
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2011 (6) TMI 598
Cenvat credit - on the strength of invoices issued by a company which had indulged in sale of PVC component without undertaking any manufacturing activity and without physically removing the goods and had issued only invoices to pass on the Cenvat credit – Held that:- there is no dispute as regards the evidence submitted by the respondent before the Ld. Commissioner(Appeals). these are only bald allegations in the grounds of appeal and no contrary evidence is produced. There is no contrary evidence produced to the Commissioner(Appeals). Appeal filed by the Revenue is rejected
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2011 (6) TMI 597
Excisability - demand of duty - intermediate product - captively consumed – marketability – polystyrene sheets arising in the course of manufacture of the final products - Held that:- Since marketability of the intermediate product has to be determined first and, thereafter, its excisability, the matter is remanded to the original authority to give a considered finding on the issue after giving a reasonable opportunity to the appellants to present their case. appeal is allowed by way of remand
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2011 (6) TMI 596
Cenvat credit - Department initiated proceedings against the respondent for using common inputs for both the dutiable and exempted products. Since they were no separate inventory maintained for such products, the lower adjudicating authority confirmed the demand – Rule 6 of Cenvat Credit Rules, 2001/2002/2004 have been amended by Financial Act, 2010 - Held that:- appellant have reversed the total Cenvat credit availed on inputs which were used for both the final products dutiable as well as exempted products and the total period is covered under the amended law - Revenue's appeal is dismissed
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2011 (6) TMI 595
ISD (input service distributor) - Suppression or mis-statement - Show Cause Notice was issued to the appellant on the sole allegation that the invoices are in the name of head office, who was not registered as ISD and as such availment of credit on the basis of the same, was not justified – Held that:- Show Cause Notice stands issued beyond the normal period of limitation, law does not require them to disclose the above facts, failure to disclose the same, by itself, cannot be equated with any suppression or mis-statement, appeal is allowed
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2011 (6) TMI 594
Demand of duty - clearance of by-products without payment of Central Excise duty by claiming the exemption under Notification No. 115/75-CE dated 30.4.1975 - Revenue argued that the above exemption is applicable only if the full cycle of manufacture of edible oil including crushing, solvent extraction and refining is done in the factory. There is also a contention that the exemption is not applicable to the by-products because such products come from refining and not from oil milling and solvent extraction - Held that:- when refining of imported oil is done in a composite factory having facilities for crushing of seeds and solvent extraction, the products emerging are eligible for exemption under Notification No. 115/75-CE, appeal filed by the Revenue is dismissed
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2011 (6) TMI 593
Waiver of pre-deposit - Tour Operator’, ‘Air Travel Agent’ and ‘Travel Agents’ services - appellant submitted that the services provided in the out-bound tours were performed outside India. Therefore they are not liable to Service tax under the provisions of Finance Act, 1994 - services provided by the appellant prima facie is covered by the Circular No. 111/05/2009-S.T., dated 24-2-2009 issued by the Board. waiver of pre-deposit granted. Treating the amount already paid by the appellant is sufficient
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2011 (6) TMI 592
Waiver of pre-deposit - Tour Operator’, ‘Air Travel Agent’ and ‘Travel Agents’ services - appellant submitted that the services provided in the out-bound tours were performed outside India. Therefore they are not liable to Service tax under the provisions of Finance Act, 1994 - services provided by the appellant prima facie is covered by the Circular No. 111/05/2009-S.T., dated 24-2-2009 issued by the Board. waiver of pre-deposit granted. Treating the amount already paid by the appellant is sufficient
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2011 (6) TMI 591
Transaction value - pressure cookers are assessable to excise duty on the basis of retail sale price as provided for under Section 4A of the Central Excise Act, 1944, parts of pressure cookers are governed by Section 4 of the Central Excise Act, 1944 and duty liability has to be discharged on the basis of transaction value - department felt that the said certificate arrived at the discounts on equalised basis and not on the basis of actual discounts passed on to the consumers or on actual taxes paid in respect of parts and pressure cookers respectively and therefore, the discounts are not permissible – Held that:- discount is as a percentage of sale value, for the purpose of arriving at the pro-rata discount they have taken the retail sale price of the goods sold which indicates that the discount which is actually claimed in respect of the parts is less than what they have actually passed on. They have also submitted sample invoices from where it can be seen that they are passing on these discounts to the buyers of the goods, appeal is dismissed
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2011 (6) TMI 590
CENVAT credit - appellants were the job-worker - appellant received certain machineries, moulds and tools fixtures from L&T on which duty has been paid by L&T. On receipt of those capital goods the appellant took credit of the duty paid on those capital goods and informed the department - show-cause notice was issued on 02/08/2005 alleging that the appellant have suppressed the facts of CENVAT credit from the department on those capital goods which they were not entitled to - Held that:- in the case of Hongo India (P) Ltd. (2003 - TMI - 108818 - CEGAT, NEW DELHI - Central Excise) , in case the buyer supplying the capital goods to the assessee for manufacture of certain goods on job-work basis on payment of appropriate duty, under a cover of duty paying documents, the assessee is entitled to take the credit of the duty paid on capital goods by the buyer, order is set aside and the appeal is allowed
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2011 (6) TMI 589
Refund claim - unjust enrichment - appellant paid duty under protest - Revenue submitted that the price-lists filed by the appellant is clearly showing the assessable value and the price at which the goods have been sold to the customers which is higher than the assessable value. - He also submitted that as per the invoices, the price shown in the price-lists which is inclusive of Central Excise duty has been recovered from the buyers. Therefore, it is quite clear that the appellant recovered the duty from their buyers – Held that:- invoice dated 18/07/1988 shows the prices which have been shown by the appellants in the price-lists filed before the department on 01/08/1988 where the prices in the invoices and the price-lists, prices given in the price-list have not been increased or having duty element as compared to the invoice for the previous period, appellants are entitled for the refund claim, order set aside and appeal allowed
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2011 (6) TMI 588
Under-valuation of the product by not including the cost of inlay card, jewel box, royalty, advertising expenses, overhead expenses - contention of the learned advocate that show-cause notice dated 22/09/2004 demanding duty for the period May, 2000 to February, 2002 by invoking the extended period is barred by limitation is having some force as in the first show-cause notice of October, 2001, the demands proposed were for the prospective period – Held that:- in the case of Jet Speed Audio Pvt. Ltd. (2005 (9) TMI 193 - CESTAT, MUMBAI) this Tribunal has held that extended period is not invokable when show-cause notice issued for the same subject prior to present notice, demands for the period prior to 19/02/2002 are not sustainable, show-cause notice is barred by limitation and the demands are not sustainable, order is set aside and the appeals are allowed
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2011 (6) TMI 587
Clandestine clearance of duty free imported brass scrap/zinc scrap in DTA without payment of duty - Proprietor of the unit in his statement recorded on various dates admitted that they were importing mix brass scrap without payment of Customs duty and were clearing the same in local market against cash, without raising any invoices and without payment of any duty - held that:- appellants have not disputed the fact of clandestine clearance of duty free imported brass scrap/zinc scrap in DTA without payment of duty. As a consequence, confirmation of Customs duty and Education Cess against them does not stand challenged by them. The only challenge is to the imposition of CVD on the ground that the mix brass scrap/mix zinc scrap imported by the appellant was not the brass scrap arising out of manufacturing activity and as such, the same was not leviable to any Excise duty in India. If that be so, the CVD cannot be confirmed against them. For the above proposition, they have relied upon the Hon’ble Supreme Court decision in the case of Hyderabad Industries (1999 (5) TMI 29 - SUPREME COURT OF INDIA)
Having clarified that it is ratio of the law declared by Hon’ble Supreme Court in the case of Hyderabad Industries, which would be applicable, we deem it fit to remand the matter to Commissioner for examining the nature of brass scrap/zinc scrap imported by the appellant and the consequential duty liability of CVD.
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2011 (6) TMI 586
Whether the service provided by the appellant as a visiting network service provider shall be treated as exempt service and Cenvat credit shall be limited to 35% - Held that:- in the case of Idea Cellular Ltd. (2009 (2) TMI 91 - CESTAT NEW DELHI). Visiting network service is exempted service for which admissibility of Cenvat credit shall be limited to 35% in respect of each return period when Cenvat credit is claimed for set off. Accordingly, liability of the appellant is to be recalculated giving set off on Cenvat credit limiting to 35% in respect of each return period. The adjudication accordingly shall end in re-computing service tax demand.
Whether non-disclosure of such fact in the return shall amount to suppression - penalty - Cenvat credit of a higher amount was unduly claimed - appellant disclosed that it was under bona fide belief that service provided by the appellants as visiting network service provider was exempt and not taxable – Held that:- Failure to make such disclosure in return or submitting entire fact by any letter accompanying its return appears to be a case of wilful suppression. assessee had paid service tax correctly in terms of provisions of the Act and Rules made thereunder such declaration becomes faulty in absence of bona fide statement either on the return or made through a letter accompanying the return. penalty levied under Section 76 is confirmed. Appeal is allowed
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2011 (6) TMI 585
Confiscation - imported laser printers and parts - classified the printers under Heading No. 8471.60 of the Customs Tariff. The importer sought exemption from MRP (Maximum Retail Price) based CVD on the ground that they are the actual users of the goods - Commissioner also confiscated the goods under importation under Section 111(m) of the Customs Act – Held that:- Customs assessed the goods to CVD on MRP basis, which importer accepted and discharged the liability accordingly. Merely because the appellant had sought an exemption from RSP based assessment in respect of CVD, it does not amount to any misdeclaration on the part of the importer. Therefore, in the instant case, the provisions of Section 111(m) are not attracted at all, confiscation under Section 111(m) of the Customs Act, 1962 is not justified and consequential imposition of fine in lieu of confiscation under Section 125 of the said Customs Act, is also not correct, set aside the confiscation and consequent imposition of fine in lieu of confiscation, penalty under Section 112 of the Customs Act is also not sustainable and is set aside, appeal is allowed
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2011 (6) TMI 584
Return on containers - Ground rent / Demurrages and/or port charges for any period beyond 75 days from the date of landing - Two containers were brought by the petitioners stuffed with Beetle nuts and those were landed at Haldia Dock Complex - consignee of the imported cargo neither turned up to take delivery of the imported cargo nor abandoned the cargo – goods sold in auction - Held that:- in the case of Industrial Cable (I) Pvt. Ltd. (1989 (8) TMI 88 - BOMBAY HIGH COURT) Port Trust authorities have independent right to sell the property under the Major Port Trust Act and the permission of the Customs department is not required for sale of those cargoes by the Port authority as the provision relating to sale of cargo under the Customs Act is different from that of the provisions contained in the Major Port Trust Act. Both the aforesaid Acts operate in their respective fields and one is not dependent on the other. Therefore, it is difficult to accept that the Port Trust authorities could not have sold those cargos in the absence of the permission from the Customs authorities under Section 48 of the Customs Act. Port Trust authorities were not justified in claiming demurrages and/or port charges for any period beyond 75 days from the date of landing. petitioners are, thus, directed to pay demurrage charges for 75 days from the date of landing of those containers in the Port area. Port Trust authorities are thus directed to return the containers to the petitioner. writ petition is, thus, disposed of.
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2011 (6) TMI 583
Revision application – baggage – re-export - goods were in commercial quantity and did not appear to be a bona fide baggage, the said goods were placed under seizure - goods which have been confiscated, were being smuggled in by the passenger without declaring the same to the Customs and are in commercial quantity – Held that:- passenger had grossly mis-declared the goods with intention to evade duty and smuggle the goods into India. As per the provision of Section 80 of Customs Act, 1962 when the baggage of the passenger contains article which is dutiable or prohibited and in respect of which the declaration is made under Section 77, the proper officer on request of passenger detain such article for the purpose of being returned to him on his leaving India. Since passenger neither made true declaration nor requested for detention of goods for re-export, before customs at the time of his arrival at Airport. So the re-export of said goods cannot be allowed under Section 80 of Customs Act.
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