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Showing 461 to 480 of 664 Records
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2006 (11) TMI 210
Issues:
Interpretation of Central Excise Act regarding utilization of credit before availing exemption Notification No. 6/2000.
Analysis:
The appeal under Section 35(G) of the Central Excise Act, 1944 was filed by the revenue against an order passed by the Customs, Excise and Service Tax Appellate Tribunal. The main question of law proposed was whether the Tribunal was correct in allowing credit utilized by the parties before availing exemption Notification No. 6/2000 based on the quantity of clearances. The assessee was availing the benefit of the said notification which provided a nil rate of duty for their finished goods. A show-cause notice was issued to the assessee for reversal of credit in respect of inputs lying in stock under process when they started clearing goods without duty payment. The demand for duty, interest, and penalty was confirmed after a hearing. The appellate authority upheld the duty demand but reduced the penalty amount. The assessee then appealed to the Tribunal, which also dismissed the appeal. The Tribunal noted that the appellant did not contest the demand for credit taken on inputs during the period of clearing goods under exemption notification. However, the appellant sought credit for inputs lying in stock, under process, and in finished goods when they started clearing goods again on payment of duty, citing Rule 57AG of the Central Excise Rules. The Tribunal suggested that the appellant could approach appropriate authorities for relief in accordance with the law. The penalty was reduced for the appellant companies, and the appeals were disposed of accordingly.
The counsel for the revenue failed to show how the revenue was aggrieved by the Tribunal's order when the assessee admitted that the demand for the period under exemption notification was not contested. The High Court found no merit in the appeal. The revenue's argument that penalty equal to the duty amount was mandatory was based on a previous judgment, but it was noted that the revenue did not appeal the penalty reduction by the appellate authority. As a result, the Tribunal's decision did not provide any relief to the assessee that could aggrieve the revenue. Consequently, the High Court concluded that no substantial question of law arose for consideration and dismissed the appeal.
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2006 (11) TMI 209
Issues:
1. Refund of duty claimed by the appellant.
2. Doctrine of unjust enrichment.
3. Burden of proof regarding passing on the duty incidence to buyers.
4. Consideration of evidence by authorities.
5. Compliance with court orders.
Analysis:
1. The appellant contested its liability to pay duty and paid under protest. Subsequently, it was found not liable and applied for a refund, which was directed to be credited to the Consumer Welfare Fund due to the doctrine of unjust enrichment, implying the burden was passed on to consumers.
2. The Tribunal reversed the finding, noting that the appellant had not passed on the duty incidence to the suppliers during the disputed period. The documents provided by the appellant were not considered by the authorities earlier, showing that the appellant was entitled to the refund as they had only charged job work charges, not the duty.
3. During the hearing, the Court observed that the documents provided by the revenue were insufficient to prove that the burden had been passed on. The invoices indicated duty deposit but not recovery from the consignee. The appellant failed to produce additional material to support their claim.
4. Despite multiple adjournments and non-compliance with court orders to seek instructions on the recovery of duty from the consignee, the Court found that the appellant had not provided enough evidence to demonstrate passing on the duty burden. The lack of substantial evidence led to the dismissal of the appeal.
5. Ultimately, the Court dismissed the appeal, emphasizing the appellant's failure to produce material beyond the documents provided, which did not sufficiently prove the passing on of duty burden. The decision highlighted the importance of meeting evidentiary requirements in claiming refunds and addressing the doctrine of unjust enrichment.
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2006 (11) TMI 208
Issues:
1. Interpretation of penalty under Section 11AC of the Central Excise Act, 1944 - whether mandatory or discretionary.
2. Application of duty exemption notification No. 67/95-C.E. on the consumption of fuel for electricity generation.
3. Consideration of intention to evade payment of duty in penalty imposition.
4. Applicability of judgments by the Hon'ble Supreme Court on public sector undertakings.
Analysis:
1. The appeal was filed against an order proposing a substantial question of law regarding the penalty under Section 11AC of the Central Excise Act, 1944. The Tribunal observed that the assessee consumed certain fuel without paying duty for generating electricity, which was used in their manufacturing unit. The Department issued a show cause notice to deny duty exemption under notification No. 67/95-C.E. The duty demand was confirmed, and a penalty was imposed, which was later reduced by the Tribunal based on the circumstances of the case.
2. The Tribunal upheld the duty imposition based on a previous judgment and reduced the penalty without specifically addressing the intention to evade payment of duty. The Revenue argued that the penalty under Section 11AC is mandatory and should be equal to the duty amount, citing a judgment by the court. However, the Tribunal did not find evidence of intentional evasion in this case, leading to a reduction in the penalty amount.
3. Considering the status of the assessee as a public sector undertaking, references were made to judgments by the Hon'ble Supreme Court regarding such entities. Despite the possibility of referring the matter to a Committee of Secretaries or remanding it to the Tribunal, the Court noted the absence of a finding on the intention to evade duty by the Tribunal. Given the previous judgment and the lack of substantial grounds in the appeal, the Court dismissed the appeal.
This judgment clarifies the interpretation of mandatory penalty provisions under the Central Excise Act, the application of duty exemptions, the consideration of intent in penalty imposition, and the treatment of public sector undertakings in duty-related matters.
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2006 (11) TMI 207
Cenvat/Modvat Credit - Reversal of amounts effected in the registers of inputs credit and the actuals made as per 8% calculation in lieu of Rule 57CC of the Central Excise Rules, 1944 - Held that:- The appellant raised contentious issues as regards applicability of sub-rule (9) of Rule 57CC vis-a-vis the provisions of Rule 57A and Rule 57C thereof. The respondent also contends that they are entitled to the reversal of amounts effected in the registers of inputs credit and for consideration as to whether the respondent has complied with the conditions laid down in the Notification No. 5/98-C.E., dated 2-6-1998 or not. Therefore, matter is remitted back - Decided in favour of Reveue.
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2006 (11) TMI 206
Valuation (Central Excise) - Captive consumption - Held that:- If an assessee has normally been making profit but in one particular year incurs loss due to some reasons, it cannot be inferred therefrom that the assessee would have normally sold his goods without profit or at loss. Normally speaking, no businessman would like to sell his goods without adding a reasonable margin of profit - Assistant Collector's decision on valuation of the captively consumed wrapper paper is based on the manufacturing cost of wrapping paper as per Chartered Accountant Certificate produced by the appellants and the manufacturing profit of the said paper as per the Balance-sheet of the Company for the year ending 30-6-1981. Therefore, there is no reason to interfere with the impugned order upholding the Assistant Collector's decision on valuation of wrapper paper captively consumed under Rule 6(b)(ii) of Valuation Rules - Matter remitted back - Decided in favour of Revenue.
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2006 (11) TMI 204
As rightly contended by learned counsel for the respondents, the plea relating to non-applicability of extended period of limitation has not been considered by the CEGAT. Therefore, the matter is remanded and the above issue alone will now be considered by the CEGAT. Appeal allowed.
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2006 (11) TMI 203
Maintainability of appeal - Locus standi to file appeal - Tribunal dismissed appeal holding that appeal not filed by authorized person - Held that:- It does not appear that any opportunity was granted to the appellant to satisfy the Tribunal that the same had been filed by an authorised person. Under these circumstances, we set aside the impugned judgment, remit the appeal to Customs, Excise & Service Tax Appellate Tribunal, New Delhi, for fresh consideration after hearing counsel for the parties. It would be for the appellant to satisfy the Tribunal that the appeal has been filed by a duly authorised person - Decided in favour of assessee.
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2006 (11) TMI 202
Whether the Single Panel Circuit Breakers are classifiable under CSH 8535.00 (rate of duty 5%) as claimed by the assessee or under CSH 8537.00 (rate of duty 20%) as per the revenue?
Whether the Board's Circular F. No. 32/8/94-CX (Section 37B Order) dated 14-7-2004, which has clarified that the Single Panel Circuit Breakers are classifiable under Chapter 85.37, has retrospective effect?
Held that:- In the instant case, assessee had filed a classification list effective from 1-3-1993, classifying the Single Panel Circuit Breakers under Heading No. 85.35 and claiming concessional rate of duty at 5% under Notification No. 52/93 dated 28-2-1993. The said classification list was approved by the jurisdictional Assistant Commissioner, on 10-6-1993. Thereafter, the assessee cleared the said goods in accordance with the approved classification list. When this approved classification was proposed to be revised to reclassify the Single Panel Circuit Breakers under Heading No. 85.37 of the tariff, such re-classification can take effect only prospectively from the date of communication of the show cause notice proposing re-classification. In the instant case, the show cause notice was communicated to the assessee only on 31-12-1993. Therefore, as rightly urged by the learned counsel for the respondent, the reclassification can take effect only from 27-4-1994 and accordingly the differential duty can be demanded only from that date.
Thus no reason to interfere with the order passed by the Commissioner (Appeals) and as confirmed by the Tribunal. The appeal is accordingly dismissed.
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2006 (11) TMI 200
Whether the job work performed by the assessee in addition to its production for its own purposes can be taken into consideration for the purposes of clause 2(f) of the 1989 Incentive Scheme, as had been held both by the Rajasthan Tax Board and the High Court?
Held that:- Both the Rajasthan Tax Board and the High Court laboured under the presumption that the job work performed by the respondent-assessee involved manufacture of goods which were similar in nature to its own goods for sale. Such an approach, in our view, was erroneous, since the very nature of the incentive given under the aforesaid 1989 Incentive Scheme involves calculation of the actual production of the unit in question. In the absence of any material to indicate the nature of job work undertaken, it would be improper to proceed only on the basis of presumption.
The Department's appeal must, therefore, succeed and is allowed and the judgment of both the Rajasthan Tax Board and the High Court dated 18th January, 2000 and 9th February, 1999, respectively, are set aside.
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2006 (11) TMI 198
AO making best judgment assessment by estimating gross profit and rejecting the books of account to determine the total income of the assessee – failure of the assessee to maintain record of purchases – absence of verifiability of sale – comparable sales were with a gross profit rate on higher side - absence of stock register – even after the assessment referring to comparable data confronted to the assessee, he did not bring on record any contrary data to substantiate his plea - rejection of books of account was justified – assessee’s appeal is dismissed
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2006 (11) TMI 197
Whether Tribunal was right in law in allowing investment allowance on the cost of machinery installed/purchased for the manufacture of soap which as per item No. 4 of the Eleventh Schedule r.w.s. 32A is specifically prohibited for the same – impugned washing soap is different from soap used by human being for person hygiene – therefore investment allowance cannot be denied on machinery used in mfg. of washing soap – in respect of computation of special deduction u/s 80HH, deduction is to be computed after deduction u/s 32A/32AB
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2006 (11) TMI 196
Rectification of assessment - From the plain language of section 155 of the Act, it is clear that in case rectification is carried out as a result of the assessment of the firm, the period of limitation starts from that date and not from the date of the appellate order. The appellate order will have no relevance to rectification carried out with reference to the original order of assessment - question referred is answered in favour of the assessee
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2006 (11) TMI 195
Assessee‘s claim for deduction u/s 80P(2)(a)(i) was rejected by AO on the ground that the activity of the assessee procuring and supplying raw silk and twisted silk on credit to its members cannot be considered as “carrying on the business of banking or providing credit facilities within the meaning of section 80P(2)(a)(i)” – held that co-operative society which is engaged in the marketing of raw silk and twisted silk is eligible for the benefit of section 80P(2)(a)(i) in respect of the interest received from its members for supplying the materials on credit – revenue’s appeal dismissed
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2006 (11) TMI 194
Whether Tribunal was correct in law in holding that for the purpose of computing the written down value of depreciable assets used in Tea business only 40 per cent. instead of 100 per cent. of depreciation allowable at the prescribed rate should have to be deducted in the assessee’s case – Held, yes
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2006 (11) TMI 193
Services of C & F Agency - revenue has proceeded to demand Service Tax on freight, loading and unloading and other expenses incurred by the appellants - issue is covered in assessees’ favour in Bhagyanagar Services v. CCE and in E.V. Mathai & Co. v. CCE - elements required for adding to the service tax is restricted to the amounts received by them for carrying on the services of C & F only - other elements like loading, unloading charges are not required to be added to the Service Tax
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2006 (11) TMI 192
Credit on education cess used for payment of duties of Central Excise other than education cess. Mistake happened during initial days of introduction of education cess. Demand not sustainable since confirmation of duty and permitting taking of credit again being a Revenue neutral exercise. However, penalty imposable, infraction of law being clearly established
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2006 (11) TMI 191
CIT transferring the file of the petitioner-assessee from Ferozepur to Baroda u/s 127 – in impugned order of transfer, reason recorded is that there is need for centralization for effective and coordinated investigation - there is nothing to show that there was any extraneous consideration or that reasons given were non-existent or irrelevant – therefore transfer under section 127, is justified – order of Commissioner require no interference
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2006 (11) TMI 190
Transfer of credit from one premises to another premises on closure / shifting of unit - the inputs in question had been duly accounted for to the satisfaction of the CCE, Bangalore and that it was upon such satisfaction that the Commissioner allowed transfer to the Modvat credit. The case of the Revenue that, for utilization of the transferred credit at Chengalpet, the inputs should have been physically received in that unit from Bangalore would lose ground. Credit is allowed
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2006 (11) TMI 189
Burden of proving that Income is subject to tax is on the revenue but on facts, to show that the transaction is genuine, burden is primarily on the assessee -Assessing Officer is to apply the test of human probabilities for deciding genuineness or otherwise of a particular transaction. Mere leading of evidence that the transaction was genuine, cannot be conclusive - No substantial question of law arises – appeal of assessee is dismissed
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2006 (11) TMI 188
Tribunal accepted the appeal of the assessee on the ground that the Assessing Officer failed to record reasons for initiating proceedings for reassessment – held that recording of reasons is a condition precedent to invoke jurisdiction under section 147/148 - Tribunal is right in law in annulling the assessment made by the Income-tax Officer - question referred to is answered against the Revenue
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