|
Advanced Search Options
Case Laws
Showing 461 to 480 of 1817 Records
-
2013 (11) TMI 1358
Claim for refund of duty - Section 11B - Held that:- This is a case where the appellant had passed on the service tax incidence, for which refund is now being claimed, to another party. In such a situation provisions of Section 11B is clearly applicable and a mistake made by another Deputy Commissioner cannot be reason enough to overrule the provisions of Section 11B of the Central Excise Act - Decided against assessee.
-
2013 (11) TMI 1357
CENVAT Credit - Classification of service - Whether trading could be treated as an exempted service for the purpose of Cenvat credit - Held that:- dispute on the issue stands clarified by CBEC in favour of the appellant. Prima facie, we agree with the advocate for the applicant because credit was taken in accordance with provisions of rule 6(5) as it was existing at the relevant time and in the matter of utilization, applicant was complying with extant rule 6(3) of the rules as it was existing at the relevant time. Cenvat Credit so accumulated could not lapse in the absence of any legal provisions to that effect. This position also is accepted by CBEC also in its circular. So its subsequent utilisation cannot be faulted - Stay granted.
-
2013 (11) TMI 1356
Availment of CENVAT Credit - finished goods supplied to another PSU - Supply not made directly to MOD - Assessee contends that clearances are not exempted under Notification No.63/95 dt 16.3.1995 - Therefore, assessee availed CENVAT Credit - Whether in terms of Rule 14 of the Cenvat Credit Rules, 2004, the appellant can be said to have taken credit wrongly - Held that:- appellant has definitely a case for seeking clarification from the department. In March, 2010, appellant sought clarification from the department to know whether the clearance of goods to M/S BEL are exempted from payment of excise duty in terms of notification. In the absence of the clarification from the department, they took CENVAT credit during the intervening period September 2010 to March 2011. They had to take cenvat credit in September, 2010 since some of the job workers did not return all the inputs within 180 days and they had to reverse the credit. To reverse the credit, they had to take credit. When there was no clarification received from the department till March, 2011, the assessee had no option but to clear two consignments in March 2011 on payment of excise duty of ₹ 90,94,851/- by utilising the Cenvat credit. On getting the clarification from TRU in April 2011, the appellant reversed the entire amount of Cenvat credit.
Appellant could not have acted any other way than the way they did. In the circumstances, holding that credit was not admissible and was taken without eligibility and therefore asking them to pay interest was not correct. Moreover, any assessee, if he has any doubt, has a right to ask the department and such action is not contrary to the provisions of law. Further, in the circumstances of this case, it cannot be said that the credit had been taken by the appellant wrongly. When credit is not taken wrongly, question of payment of interest does not arise in terms of provisions of rule 14 of CCR 2004 - Decided in favour of assessee.
-
2013 (11) TMI 1355
Demand of service tax, interest and penalty - Renting of immovable property - Revenue contends that assessee was providing storage or warehousing service - Held that:- there is some material to show that the petitioner may have provided loading and unloading of FCI goods . From the generic nature of the petitioner s corporate business also, it is conceivable that it could have provided warehousing facility, though the petitioner failed to produce any evidence to support its assertion that it was providing warehousing facility, before the adjudicating authority - Assessee directed to remits 50% of the adjudicated liability of service tax along with the proportionate interest on this amount - Partial stay granted.
-
2013 (11) TMI 1354
Refund claim - Import of Tin Plate plain or misprint sheets-waste, waste/secondary - Assessee filed refund claim of 4% of SAD in terms of Notification No. 102/2007-Cus. dated 14.9.2009 as amended - The original authority and Commissioner allowed the refund claim - Held that:- It is revealed from the impugned order that vide Bill of Entry No. 532821 dated 7.6.2010, the goods were ‘Tin Plate or Misprints, Sheets waste / secondary and rejected’ whereas in the sale invoice there is a description of ‘Tin Sheet, W/W or Sheets’ or ‘Tin plates defects’. Similarly, the description in the Bill of Entry No. 534622 dated 9.6.2010 was ‘Tin Plate Plain or Misprints Sheets -Waste / Waste Secondary & Rejected but the sale invoice shows the description Tin Plate Misprints sheet or Tin Plate defective. On a query from the Bench, the learned counsel submits that Tin Sheet W/W indicates Tin Sheet Waste / Waste as mentioned in the Policy. It is apparent, on a plain reading of the description, that the Bill of Entry indicates waste / rejected and sale invoice showing ‘waste and defects’ instead of rejected, which are similar in nature - such a difference of the description ‘rejected’ or ‘defects’ cannot disentitle the benefit of exemption notification - There is no condition in the Notification that the Bill of Entry number should be mentioned in the sale invoice - Chartered Accountant s certificate was accepted by the adjudicating authority in terms of Board Circular, cannot be discarded without any material and/or basis. Revenue has not placed any material and therefore, there is no force in such grounds of appeal - Decided against Revenue.
-
2013 (11) TMI 1353
Confiscation of goods - Mis declaration of goods - Imposition of redemption fine - Import of parts of a motor cycle - whether the imported items would make a complete motor bike or not - Held that:- even the Chartered Engineer appointed by the department stated that fuel tank assembly, rear wheel assembly, front wheel assembly, steering assembly and frame assembly would be required to complete the motor cycle - motor cycle parts or the items mentioned above cannot be treated as a complete motorcycle in terms of the Rules of the Interpretation of Customs Tariff. According to the Rules of Interpretation, an article which is incomplete or unfinished and has the essential character of the complete or finished product has to be treated as finished product and classified accordingly. We cannot imagine a complete motor cycle without two wheels, fuel tank, etc. Therefore, even though both the appellants had admitted the classification of the item as a full motor cycle and the department has treated the same accordingly, we cannot uphold this view.
appellants have apparently planned the import of these items through their friends in consultation with mechanic and deliberately declared only as ‘motor cycle engine’. Even assuming that it was a gift, even if we accept that engines were gift, we cannot imagine a situation where a friend would send motor cycle engine and various other parts without informing the friend as to what are the items he has sent - similar items have been sent as a gift by two different persons from Singapore to two persons in India which would clearly go against the claim of the appellants that parts of the motor cycles were sent by them were gifts. Therefore, this is a case of mis-declaration and therefore, the confiscation of the goods is in order and the redemption fine was imposable. However, there is no finding to the contrary in respect of the claim made by the appellants that motor cycles were imported for their own use and a mechanic would convert to a motor cycle by assembling local parts. Therefore, the redemption fine appears to be slightly excessive.
appellants cannot be considered as innocent and they have indulged in mis-declaration of the goods and therefore, penalty imposed is also in order. Nevertheless, our observations as regards redemption fine would apply to the penalty also - redemption fine and the penalty to reduced 50% of the actual amounts imposed on the appellants which, in our opinion, would meet ends of justice - Decided partly in favour of assessee.
-
2013 (11) TMI 1352
Confiscation of goods - Export of restricted goods without license - Violation of provisions of Rule 31 of the Standards of Weight and Measures (Packaged Commodity) Rules, 1997 - Held that:- There is no evidence that such medicine was bared. In such scenario, the provisions of Rule 31 of the Standards of Weight and Measures (Packaged Commodity) Rules, 1997 cannot said to have been violated - Rule 31 of the Standards of Weight and Measures (Packaged Commodity) Rules, 1997 was deleted from the statute book with effect from January, 2007 onwards. The show cause notice was issued on 19.9.2007 when admittedly Rule 31 was not on statute book - when rule lapses on repeal of that rule without saving a clause, section 6 of the General Clauses Act does not apply to the same and proceedings already initiated under that provision of law cannot be continued - Even show cause notice was not issued upto 13.1.2007 when said rule was omitted. As such reference to the said rule in the show cause notice issued on 19.9.2007 when the said rule was not in existence and is against the settled principle of law, cannot be appreciated and impugned order cannot be upheld - Decided in favour of assessee.
-
2013 (11) TMI 1351
Duty demand - Importer neither paid the duty assessed under the respective Bills of Entry nor cleared the cargo from the Customs area - Importer contends that due to some logistic problem in transferring the imported cargo, the same could not be moved from the port area - Further, they have stated that neither customs duty was paid nor any amount was remitted to the foreign supplier, hence, the respective Bills of Entry be treated as withdrawn - Assessee approached Commissioner of Customs(Import), Bhubaneswar requesting for cancellation of the Bills of Entry and also amendment to the respective IGM filed by the importer M/s. MMTC and M/s. STC, on the ground that they have entered into agreement with the overseas seller/supplier and purchased the said consignments, which were not cleared by the previous importers - Commssioner rejected requests for amendment to the IGM, cancellation of the earlier Bills of Entry and for filing fresh Bills of Entry.
Held that:- Importers, M/s.MMTC and M/s.STC, both Public Sector Undertakings, have imported Indonesian Steaming (Non-Cooking) Coal in the month of the Dec. 2011 & Feb. 2012, from the same overseas seller/supplier. At the time of importation of the said goods, the importers had complied with all the necessary formalities, like submission of IGM, Bills of Entry etc. along with other relevant documents necessary for clearance of the Cargo for home consumption from the Customs area. It is also not in dispute that the Bills of Entry Nos.5365734 and 6052529 dated 02.12.2011 and 21.02.2012, respectively, were finally assessed by the Customs authorities and handed over to the importers M/s.MMTC and M/s. STC for payment of duty; but both the importers have failed to discharge the duty and clear the goods. In the meantime, the authorities have initiated action under Section 48 of the Customs Act. Thereafter, the importers M/s MMTC & M/s STC had filed representations with the Customs authorities informing that they could not clear the goods because of logistic problem and requested for cancellation of the respective Bills of Entry and also expressed of having no objection for amending the IGMs in favour of the new consignee to whom the goods would be sold by the overseas supplier.
If the Appellants are ready to discharge the duty assessed by the Department relating Bills of Entry Nos.5365734 and 6052529 dated 02.12.2011 and 21.02.2012, respectively, and other liabilities as on the date of clearance of goods, we do not see any reason as to why the amendment to the IGMs requested by them, only to the extent of change of the names of the importers, be not allowed, as the principal ground for rejection of such request, is no more relevant - Decided in favour of assessee.
-
2013 (11) TMI 1350
Anti dumping duty - Notification NO. 86/2011 - Whether Stainless Steel Cold Rolled coils having width of 1256 MM to 1259 MM are covered under Notification 86/2011 for imposing anti-dumping duty or not - Held that:- scope of the examination was not for enhancement of the product scope i.e. width exceeding 1250 Mm and product is defined as cold rolled flat products of stainless steel of weight of 600 MM up to 1250 MM. From the said scope, the intent of the levy of anti-dumping duty by the Designated Authority is very much clear that the product up to 1250 MM is liable for anti-dumping duty; that the Notification 86/2011 was issued in the background that in the absence of tolerance in the recommendation of corresponding Notification the products of width 1250 MM or lower are being declared as having width of 1251 MM to 1300 MM and thereby the anti-dumping duty is circumvented. It is further found that larger number of consignments where the width has been declared as 1251 MM or marginally above the 1250 MM limit specified in the final finding, thereby escaping anti-dumping duty. Therefore, this Notification came to levy for tolerance of (+) 30MM in the width - any product having width more than 1250 MM are not leviable for anti-dumping duty. Admittedly, in this case the width of the product on physical examination was found between 1256 MM to 1259 MM. Therefore admittedly the width of the product in question is more than 1250 MM. Therefore Notification 14/2010 amended to Notification 86/2011 is not applicable to the appellant. As Notification is not applicable to the appellant, therefore question of levy of anti-dumping duty of the goods imported by the appellant does not arise. Accordingly, demand in the impugned order is not sustainable - Decided in favour of assessee.
-
2013 (11) TMI 1349
Penalty u/s 112(a) and 117 - Confiscation of goods as the consignees were non-existent - Held that:- corrigendum to show cause notice was issued on the basis of the facts as narrated in the first show cause notice, which is not disputed by the appellant and therefore, corrigendum to show cause notice is not a fatal issue - each show cause notice must be limited to the case that is made out therein by the Revenue. In the present case, the Revenue has not made out any new case in the corrigendum to show cause notice. In fact, the proposal in the corrigendum to show cause notice was based on the facts of the first show cause notice and therefore, the said case law could not apply herein - It is noted that in exercise of powers conferred by Section 157 of the Customs Act, 1962, the Central Board of Excise and Customs made Regulations, 1998. In the present case, it is seen that the penalty was imposed on the ground that the appellant filed the Bill of Entry under fictitious names which is within the purview of Section 112 (a) of the Customs Act, 1962 - Penalty reduced in each case - Decided partly in favour of assessee.
-
2013 (11) TMI 1348
Stay application - Winding up of a company - Inability to pay debts - Held that:- winding up proceeding is not a recovery proceeding for enforcing the recovery of the debt. It is not a tool to realise the debts due from the company, nor could be taken out to exert the pressure on the company to pay the dues. The debt must be of an ascertained and/or definite sum. If there is some bona fide disputes so raised, the proper course which the Company Court should adopt is to relegate the parties to a regular civil proceeding. Furthermore, the financial solvency of the company should also be taken in mind in discharging the admitted liability and raising a bona fide disputes.
company has paid off the entire principal amount, may be after the winding up petition is advertised. All the creditors who appeared at the post advertisement stage including the present creditors have been paid in entirety. It is only the dispute relating to the payment of interest which is left to be considered in the winding up proceeding. From the admitted fact that the company have paid the entire principal amount, it is demonstrated that the company is otherwise financially solvent and that its continuance in operation would not effect the public at large. Except from a stray statement that the company has pleaded the waiver of the interest, there is no contemporaneous document forthcoming before the Court which would lead to an inevitable conclusion that the company has agreed to pay the interest as claimed by those secured creditors - The application under Section 466 of the Companies Act is allowed, meaning thereby that the winding up petition shall remain permanently stayed - Stay granted.
-
2013 (11) TMI 1347
Failure to declare the value of components – Bought out items received at site - Escapement of tax - Waiver of pre-deposit - The Petitioner claimed that the bought-out items are inseparably attached to the concrete foundation during assembly of the cooling towers and therefore constitute immovable property outside the ambit of excise duty – Held that:- Following CCE,Aurangabad vs. LIPI Boilers Industries Ltd. [2010 (9) TMI 392 - CESTAT, MUMBAI] - incorporation of ‘bought-out’ items to an assembly which involves embedding of the several components at the user’s site is an incident of operational requirements, but would not thereby transform a moveable complex of products into immovable property.
The issue whether ‘bought-out’ items ought to be considered to have transformed into immovable property prior to the process of assembly of large size cooling towers and whether the taxable event had occurred before such impregnation in the earth and whether such fixture is temporal or permanent, is a mixed question of fact and law – Assessee directed to pre-deposit 50% of the assessed service tax liability and interest – upon such submission rest of the duty to be stayed till the disposal – partial stay granted.
-
2013 (11) TMI 1346
Clearance of the goods for home consumption – Scope of Notification No.29/2002 - Waiver of Pre-deposit of duty and penalty u/s 11AC of Central excise act,1944 – Held that:- The benefit of the said Notification is applicable to clearances from the places laid down - Prima facie, there was no substance in the reasoning of the Commissioner that clearance would not include clearance of goods for home-consumption – Prima facie, the Notification is made applicable to clearances from places notified - It has not been specified –‘clearance for home-consumption’ - Prima facie, the clearance for captive consumption also would come within the scope of the Notification - the Applicant could able to make out a prima facie case for total waiver of the pre-deposit of all dues – Pre-deposit of all dues waived and its recovery stayed till the disposal – Stay granted.
-
2013 (11) TMI 1345
Clandestine manufacture and clearance of MS ingots – Retrieval of private records/data stored in a Pen-drive – Waiver of Pre-deposit – Held that:- Prima facie, the Commissioner has dealt in detail the evidences retrieved from the Pen-drive from the employee of the Applicant and on comparison the said data with the statutory register maintained by the Applicant in the factory, discrepancies were noticed relating to the production and clearance of finished goods - the data which has been retrieved from the possession of the employee of the Applicant and the data has relevance to the statutory records maintained by the Applicant as there were common transactions between the data found in the Pen-drive and also entries in the statutory records - it is a question of appreciation of evidence and not a case of no evidence – assessee directed to deposit 50% of the total amount of duty to be submitted as pre-deposit – upon such submission rest of the duty to be stayed till the disposal – partial stay granted.
-
2013 (11) TMI 1344
Charging of duty on accessories – Brought into factory and cleared with the air heaters, treating them as essential parts of a complete air-heater – Waiver of Pre-deposit – Held that:- Whether air heater with the accessories becomes an air-heating system and emerges at the factory as a finished excisable goods, be considered at the time of disposal of the Appeal, after appreciation of the evidences adduced by both sides - Prima facie there was no merit in the submission of the Consultant that air heating system emerges only at the site as the nomenclature, ‘Air-Heating System’ does not appear in any of the documents, namely, Central Excise Invoices, Purchase Orders etc - the Applicant failed to make out a prima facie case in their favour for total waiver of the dues – assessee directed to deposit 25% of the duty as pre-deposit – upon such submission rest of the duty to be stayed till the disposal – Partial stay granted.
-
2013 (11) TMI 1343
Activity manufacture or not - Demand of service tax - Job work – Held that:- Painting of Motor Vehicle parts is a part of manufacturing activity of Motor Vehicles as per section Note to Section XVII of Central Excise Tariff Act, 1985 – conversion of an article which is incomplete or unfinished but having the essential character of the complete or finished article amounts to manufacture – Decided against Revenue.
-
2013 (11) TMI 1342
Denial of Cenvat credit – Necessary infrastructure for manufacture of finished goods were not available - The Revenue did not dispute the payment of excise duty by supplier of raw materials - nor there is any evidence coming forth in the form of statement or otherwise that applicant had not received the excisable goods in the factory on which they had availed cenvat credit - The applicant thus could able to make out a prima facie case in their favour on this point.
Non-production of documents - Shortage of stock –Waiver of Pre-deposit - Held that:- At the time of the visit of the officers, the applicant could not able to account for the goods and in the reply to the show cause notice, the transformers that were mentioned had been cleared much later than the joint stock taking - applicants claimed that each and every transformers is serially numbered and not a single transformer cleared without payment of duty - it is case of appreciation of evidence - the applicants directed to deposit Rupees Fifteen Lakhs as pre-deposit – upon such submission rest of the duty to be stayed till the disposal – partial stay granted.
-
2013 (11) TMI 1341
Goods mentioned in RG-23D Register are Bogus receipt entries - No goods received – supply of materials is out of stock – Waiver of Pre-deposit – Held that:- Prima facie, out of eight invoices, in the five invoices, the RG 23D entries mentioned which according to the statement of Shri Rakesh Bansal are just bogus entries are without actual receipt of any material - the dispute here is of fact, which can be examined in detail only at the time of final hearing and prima facie there is evidence against the appellant - this is not the case for total waiver - The appellant is directed to deposit an amount of Rupees One as pre-deposit – upon such submission rest of the duty to be waived till the disposal – Partial stay granted.
-
2013 (11) TMI 1340
Valuation - Assessment of clearances on cost construction basis – Assessee transferred goods to their sister unit – Held that:- Following Ispat Industries Ltd. vs. CCE, Raigad [2007 (2) TMI 5 - CESTAT, MUMBAI] - Transfer of part of production to another plant of the same assessee and balance production sold to independent buyers would not attract the provisions of Rule 8 in respect of transferred production - Rule 8 of Central Excise (Valuation ) Rules, 2000 would apply only where entire production of a particular commodity is captively consumed - the assessee is partly selling their goods to independent buyers and partly transferring the same to their sister units, thus, the cost construction based assessable value adopted by the Revenue is not justified - order are set aside and appeals – Decided in favour of Assessee.
-
2013 (11) TMI 1339
Validity of Cenvat credit taken on duty paid - whether duty has been paid or not and if duty has been paid by the supplier/assessee, the receiving assessee cannot be found fault with if he takes CENVAT credit of the duty paid so long it is used as input and CENVAT credit is admissible – Held that:- Following Commissioner of Central Excise, Chennai-I vs. CEGAT, Chennai [2005 (1) TMI 125 - HIGH COURT OF JUDICATURE AT MADRAS] - Rule 57A(1) of Central Excise Rules, 1944 provides for availment of CENVAT credit of duty paid and not payable - This distinction is very important and which indicates that what is to be taken into account is the factual state of affairs - once the duty has actually been paid on the raw material, the credit is admissible - Even the amended CENVAT Credit Rules have similar provisions and provide for CENVAT credit of duty paid on inputs.
There is no such obligation on the person who receives the goods and avails the CENVAT credit - He is eligible to take CENVAT credit of duty paid which is specified in the First Schedule to the Central Excise Tariff Act - The responsibility of the receiver of the inputs/capital goods is to ensure that duty has been paid and the same has been received by him, accounted for by him and utilized by him properly.
In Board’s Circular No. 940/1/2011-CX dated 14.1.2011, it has been stated that where an assessee pays Excise duty on exempted goods, the amount recovered as Excise duty has to be deposited with the Central Government and CENVAT credit also needs to be recovered in terms of Rule 14 of the CENVAT Credit Rules, 2004 - The credit which was taken wrongly would arise when an assessee is required to determine whether the inputs/capital goods received by him are liable to duty or not and whether duty is payable or not - There is no rule which puts an obligation on the receiver of goods - assessment has been taken away even from the Central Excise officer - the Board’s Circular which has been issued without taking into consideration and considering the implications of the provisions and implications of the instructions on the assessees cannot be applied blindly – Decided in favour of Assessee.
............
|
9911796707
