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Case Laws
Showing 501 to 520 of 1054 Records
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2011 (2) TMI 1063
Waiver of pre-deposit - stay petition - appellant had deposited the entire amount of duty and interest before issuance of show-cause notice - Held that:- The impugned order which upheld the payment of equivalent amount of penalty u/s 11AC is erroneous; at the same time, the benefit of provisions of Section 11AC of the Central Excise Act, 1944 extented and direct the assessee to pay 25% of the amount of duty as penalty within 30 days of the receipt of this order, failing which the appellants will be required to pay the entire amount duty as penalty.
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2011 (2) TMI 1062
Waiver of pre-deposit - marine vessels with its destination to Colombo was found sailing between Bombay coast and Gujarat coast - Customs officers seized the vessel - vessel was engaged in smuggling diesel - appellants applied for provisional release of the vessel but the request was rejected - appellants submitted that the learned Commissioner chose to hurriedly dispose of the case without granting a reasonable opportunity of meeting the case of the department - Held that:- Having utmost concern over the denial of natural justice as had the case been decided by the Commissioner after giving a reasonable opportunity of being heard and after careful application of mind to the relevant judgments/orders of the Hon'ble High Courts and to the available evidence, he could have passed a better order. The order of adjudication, as it stands, has got to be set aside on account of the infirmities pointed out by the learned counsel - appeals allowed by way of remand with a request to the Commissioner of Customs (Import), Mumbai to pass a speaking order on all issues in accordance with law and the principles of natural justice.
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2011 (2) TMI 1061
Stay petition - appellant requested for personal hearing consequent to such a reply, the adjudicating authority granted personal hearing on 22/01/2009, on which date adjournment was sought by the assessee on the ground that advocate had to come from Chennai - Held that:- Adjudicating authority passed order on 31/03/2009 which was issued on 30/04/2009 whereas the personal hearing was granted on 22/01/2009 - adjudicating authority could have accommodated the assessee for one more time and granted him a personal hearing before deciding the matter, order-in-original was passed in violation of principles of natural justice, orders of the lower authorities set aside and remand the matter back to the adjudicating authority to reconsider the case afresh within a period of 3 months from the date of production of this order, appeal and the stay petition are disposed of on the above terms.
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2011 (2) TMI 1060
Waiver of pre-deposit - cenvat credit denied of the service tax paid by their contractor on the service rendered for fabrication of factory premises on the basis of documents which according to the adjudicating authority were improper - Held that:- As there is no dispute that the assessee has entered into a contract for erection / fabrication of the factory premises with one M/s. Interach Building Products Pvt. Ltd. It is also not in dispute that the contractor has been raising running bills & been discharging service tax liability on the contract executed by him and the assessee has been paying the said service tax to the contractor. Thus if the assessee was discharging service tax liability raised by the contractor and if the service is eligible as 'input service' as per the definition in the Cenvat Credit Rules, 2004 the assessee should not be denied the credit - remand the matter back to the adjudicating authority to re-consider the issue afresh.
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2011 (2) TMI 1059
Business Auxiliary service - Refund claim rejected on the ground that the appellant had not disputed the service tax - Held that:- Commissioner (appeals) upheld the Order-in-Original regarding the rejection of the refund claim & further ordered that if any demand is confirmed on the same activity for the same period, the amount already paid by the appellant needs to be adjusted against the same. This adjustment of the refund amount rejected would amount to sanction of the refund claim, therefore there is a contradiction in the findings of the Commissioner (Appeals) - remand the case back to the Commissioner (Appeals) for de novo order.
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2011 (2) TMI 1058
Assessable value - Valuation of excisable goods sold by the assessee - department was of the view that the place of removal was not the factory gate but the premises of the buyer where the delivery took place and accordingly, the cost incurred on account of freight including transit insurance charges from the factory gate to such place of removal was includable in the assessable value - Held that:- the terms of sale were 'ex-works' i.e., ex-factory gate. Merely because the assessee has arranged for the transportation of the goods along with transit insurance it does not lead to the conclusion that the place of removal has been shifted from the factory gate to the buyers premises. As decided in Escorts JCB Ltd. (2002 (10) TMI 96 - SUPREME COURT OF INDIA) if as per the terms and conditions of sale, the delivery is taking place at the factory gate and transit risk and insurance are to be borne by the buyers from the time the goods are handed over to the buyer's representative or from the time the goods leave the assessee's premises, the 'place of removal' remains the factory premises, since the transaction of sale, payment of the price and delivery of goods to the carriers occurred at factory premises. The ratio of the above judgement applies squarely to the facts of the case, appeal dismissed
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2011 (2) TMI 1057
Captive consumption of yarn to manufacture grey fabrics - SCN alleging suppression of facts while showing the costing of captively consumed yarn - Held that:- Show-cause notice dated 21.5.2002 was issued to the assessee for demanding differential duty for the period from April 98 to April 99 for having not included the elements of interest, profit margin and selling and distribution charges in the value of yarn. It is undisputed that during the relevant period, the respondent had filed price declarations in terms of Rule 173C of erstwhile Central Excise Rules, 1944. The receipts of the declarations have been acknowledged by the jurisdictional authorities on the respective column.The price declarations included the details of the cost of the product alongwith a certificate given by a Cost Accountant. Thus Commissioner (Appeals) was correct in coming to the conclusion that the entire demand is hit by limitation. It was for the revenue to raise queries if the said declaration was erroneous, nothing stopped them from seeking further clarification from the assessee.
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2011 (2) TMI 1056
Refund claim denied - Unjust enrichment - Tribunal decided the appeal filed against the first Order-in-Appeal and sent the case back to the original authority for decision - Held that:- Since the first O/A has been set aside by the Tribunal, the present appeal becomes infructuous, original authority is required to examine the bar of unjust enrichment, after giving the party a reasonable opportunity of being heard, appeal is disposed of
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2011 (2) TMI 1055
Undervaluation - Penalty on CHA - appellants submits that the adjudicating authority has noted that there is nothing on record about the involvement of the CHA with regard to the offence & after the importer directed the CHA to file regular bill of entry, they have filed it - Held that:- Initial value declared by the importer was not in accordance with the Customs Valuation Rules. The details of the royalty/ licence fee paid and the contract were produced only when they were asked for it by the department. The valuation done by the adjudicating authority has not been challenged by the importer. Therefore, as regards the issue of undervaluation, it stands established in respect of the goods involved in these cases.
As find that S.M.Enterprises was having the knowledge that the consignment was detained by the customs for valuation purposes. So before filing the regular Bill of Entry, the CHA should have enquired with the importer about all valuation details. Without doing so, they filed the regular Bills of Entry by declaring the same material value of the goods - therefore, agree with the order passed by the Commissioner(Appeals) however reduce the penalty to Rs. 5,000/- in each case.
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2011 (2) TMI 1054
Refund of interest - appeal seeking for higher rate of interest on the refund amount - interest claimed on the refund amount which pertains to the period from 1.5.01 to 26.7.06. The rate of interest fixed vide Notification No. 75/03 cannot be applied retrospectively. The appellant is entitled to interest from 1.5.01 to 10.5.01 at the rate of 15% pa as per Notification No. 36/2000 dated 12.5.2000 and with effect from 11.5.01 to 11.9.03 the appellant is entitled at the rate of 9% pa as per Notification No.21/2001 dated 11.5.2001 and with effect from 12.9.03 the rate of interest as applicable in Notification No.75/03 will govern the rate of interest, appeal is allowed with consequential relief, if any.
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2011 (2) TMI 1053
DEPB claim rejected on verification for non-fulfillment of the condition - Held that:- As in Order-in-Original and the Order-in-Appeal are in respect of 2 Shipping Bills No. 5274398 and 5286278 in respect of which the total amount due is Rs. 51,694. But the department has rejected their entire claim of other 4 Shipping Bills which were not part of the show-cause notice. In respect of 4 Shipping Bills not covered by the show-cause notice, the Asstt.Commission is free to issue fresh show-cause notice and decide the case as per law, after giving reasonable opportunity of being heard to the exporter.
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2011 (2) TMI 1052
Penalty under Sec.112 of the Customs Act - Held that:- Penalty u/s 112 could be imposed if the goods are held liable for confiscation under Sec.111 of the Customs Act. As find that there is no proposal for confiscation in the show-cause notice & also there is no confiscation of the goods in the Order-in-Original passed by the Commissioner of Customs therefore, set aside the impugned order and allow the appeal of assessee.
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2011 (2) TMI 1051
Captive consumption - demand of differential duty - yarn captively consumed - the appellant is discharging duty at spindle stage, on the basis of value arrived at on costing basis without adding profit margin - contention of the appellant that the goods captively consumed yarn is different than the yarn which are sold by them - Held that:- Commissioner (Appeals) while disposing of the appeal filed by the Revenue, which is impugned before us the matter has been remanded back to the original adjudicating authority to reconsider the provision of Central Excise Valuation Rules, more specifically Rule 6(b)(i) or 6(b) (ii) as the case may be. In such a case of remand by the learned Commissioner (Appeals) to the adjudicating authority not to be interfere in the matter and pass an order on merit of the case.
Matter needs to be adjudicated by the adjudicating authority keeping in mind the direction issued by the learned Commissioner (Appeals).
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2011 (2) TMI 1050
Valuation - Captive consumption - case of the Revenue that the advertising cost, interest, marketing distribution expenses and other administrative expenses are required to be included in the cost of the production of the said intermediary product - Held that:- As respondent had taken the cost of production as per the cost accounting records and cost audit records required to be statutorily maintained by them as directed by Bureau of Industrial Cost & Pricing (BICP) - in the case of Cadbury India Ltd. (2006 (8) TMI 2 - SUPREME COURT OF INDIA) has laid down the law that the cost of production should be cost at the place where the product is manufactured and captively consumed, judgement of apex court squarely covers the issue in favour of the assessee - appeal filed by the Revenue is devoid of merits and is rejected, Cross Objection stands disposed of.
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2011 (2) TMI 1049
Excess Cenvat credit availed - Valuation - as per Revenue authorities incharge of the appellant's factory had conducted valuation of the same and came to the conclusion that the appellant has availed excess Cenvat credit than the actual amount of duty payable as the job-worker has paid excess amount of duty than the duty liable to be paid by them - Held that:- It is not in dispute that the supplier in the instant case is falling under the jurisdiction of another Commissioner. As supplier was not issued any show-cause notice by the jurisdictional Revenue authorities asking to show cause as to why the valuation of final productions should not be redetermined. It is also not in dispute that the appellant herein paid the supplier of the amount which was invoiced - judgment of MDS Switchgear Ltd. (2008 (8) TMI 37 - SUPREME COURT) & Purity Flexpack Ltd.[2006 (11) TMI 127 - HIGH COURT GUJARAT AT AHMEDABAD] would cover the issue in favour of the assessee, merits in appeal filed by the assessee.
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2011 (2) TMI 1048
Waiver of pre-deposit - natural justice denied - Held that:- The denial of natural justice to the appellants cannot be underplayed. MEPL requested for retest of samples and also for opportunity to cross-examine the Chemists/Analysts who tested/analyzed the said samples were turned down on 26.8.09 itself. The impugned order does not indicate that the Commissioner's decision dated 26.8.09 was instantly communicated to MEPL's advocate. Apparently, his letter dated 26.8.09 was sent to the advocate and the latter received it on 1.9.09. It is also on record that, in a letter dated 28.8.09, MEPL's advocate requested the Commissioner for opportunity of being heard. This letter carries dated seal of the Commissioner's office indicating that it was received by the Commissioner on 26.8.09. Obviously, the adjudicating authority chose to pass the final order on 31.8.09 without heeding the above request of the counsel for MEPL. Thus, the manner in which the case was adjudicated by the Commissioner clearly shows that rules of natural justices were flouted.
Yet another plea made by the learned counsel is that MEPL was not permitted to cross-examine the Chemists of SASMIRA who analyzed the samples. It is on record that they offered to furnish the names and other particulars of the Chemists, which apparently they have not been able to do. Nevertheless, it is open to them to furnish the names and other particulars of the witnesses to the Commissioner and also state valid reason why they should be cross-examined. Thus sufficient reasons for remand of the case.
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2011 (2) TMI 1010
Denial of Modvat credit - extended period of limitation invoked - Appellants were working under the MODVAT Scheme and availed credit of duty paid in respect of capital goods and inputs during the period - invoking extended period - Held that:- As per the provisions of Rule 57I of Central Excise Rules which deals in respect of credit wrongly availed or utilized, extended period of limitation is applicable where the credit has been taken on account of willful misstatement, commission or suppression of facts. In the present case as Appellants were filing regularly the monthly returns along with duty paying documents which were duly defaced and there is no dispute in this regard hence without going into the other issues the demand is liable to be set aside on the ground of time bar. In favour of assessee.
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2011 (2) TMI 1009
Cenvat credit denied - Penalty under Section 11AC of the Central Excise Act - supplier manufacturer has not paid duty in respect of two invoices - contention of assessee that the investigation was completed on 12.09.2002 and the Show Cause Notice was issued on 24.09.2004 hence in absence of allegation of suppression the demand is time barred - Held that:- Period of limitation for service of show cause notice under sub-section (1) of Section 11A, stands extended to five years from the relevant date,thus Revenue can issue Show Cause Notice within five years from date of knowledge in case of suppression with intent to evade duty, thus no merit in contentions of appellant that demand is time barred.
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2011 (2) TMI 1008
Valuation - demand of duty - assessee sold transformers to their sister division at the cost of production + 10% as prescribed under Rule 8 of the Valuation Rules in spite of the fact that the provisions of law applicable to the case of the appellants are comprised under Rule 11 - Secondly, that the appellants had failed to inform the department about the sale of the goods to the related persons - Held that:- In the instant case price of the comparable goods to independent buyer was available with the Appellant as is evident from the sale of 7500KVA Copper bound transformer made to M/s. Sumita Tex Spin Pvt. Ltd. at Rs.6121000/-. The price of the goods was known prior to sale of goods and Appellant should not have resorted to Rule 8 of the Valuation Rules. Price was also known when a contract for setting up of a switchyard project of Rs.53 million was made on 19.07.06 by M/s. Crompton Greaves Ltd. Engg. Project Division and accordingly, cost was distributed on all the equipments used in the said switchyard project as is evident from the said contract.
The impugned order discloses that while the adjudicating authority had accepted the contentions sought to be raised on behalf of the assessee in relation to the first charge against the assessee, and there was a clear finding that the prices of different transformers were not comparable for various reasons recorded in the impugned order. There was no challenge by the department to the said finding. Undisputedly, there were no cross objections filed by the department before the Commissioner (Appeals). Being so, the said finding by the adjudicating authority had attained finality. In those circumstances, it was not open to the Commissioner (Appeals) to arrive at any finding contrary to the said finding. Therefore, the impugned order is not sustainable and is liable to the set aside and the matter is to be remanded to the Commissioner (Appeals) to decide same afresh in accordance with the provisions of law.
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2011 (2) TMI 1007
Non-compliance of the provisions of Section 35 F - Rejected the claim for refund on account of payment of education cess through PLA being not admissible and, therefore, had directed the appellants to reverse the said amount within 5 days of receipt of the copy of the order - Held that:- Perusal of the impugned order apparently discloses that the appeal has been dismissed solely on the ground of non-compliance of Section 35 F of the said Act - The impugned order, however, does not disclose any opportunity having been given to the appellants to satisfy the Commissioner (Appeals) as to why the appeal should not be dismissed on the ground of non-compliance of Section 35 F of the Act. Besides, as the appellants have expressed willingness to deposit the required amount in terms of order passed by the Commissioner (Appeals) under Section 35 F of the said Act, in all fairness, it is appropriate to set aside the impugned order and give an opportunity to the appellants to comply with the requirements of Section 35 F.
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