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Central Excise - Case Laws
Showing 21 to 40 of 222 Records
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2007 (10) TMI 540
Order of Commissioner ... ... ... ... ..... ew that they were not eligible for the credit might be erroneous, but by no stretch of imagination, could be considered as a mala fide action. In fact, the learned Authorized Representative submitted that they had at no point of time made any submission of mala fide action by the departmental officers. Under these circumstances, it is not understood as to why such harsh remarks should be made by the Commissioner (Appeals) against the investigating officers and the adjudicating authority who are also statutory functionaries like him. Therefore I hold that these adverse remarks against the departmental officers are unwarranted. 7. emsp In the above-mentioned circumstances, the inputs were received piecemeal and the violation was only procedural and penal action has also been taken for such violation. I hold that the order of the Commissioner (Appeals) on merit is acceptable. 8. emsp The appeal by the department is rejected on the above terms. (Pronounced in Courts on 8-10-2007)
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2007 (10) TMI 539
Penalty - Production capacity based duty ... ... ... ... ..... ause of extreme financial difficulty being faced by the appellants. 3. emsp I find that equal penalty of Rs. 1,11,676.00 (Rupees one lakh eleven thousand six hundred and seventy-six) has been imposed by the Original Authority under Rule 96-ZP(3) of the Central Excise Rules, 1944 in a mechanical manner without going into the question as to whether the appellants had any fraudulent intention in not paying the duty on the due date. Considering the fact that the appellants are admitting their duty-liability and are pleading that the delay was merely on account of extreme financial difficulty and also considering the fact that the interest on the delayed payment takes care of any financial benefit gained by the appellants in not paying the duty in time, I set aside the penalty imposed on the appellants as there is no finding of mens rea in the impugned Order imposing the penalty. The appeal is partly allowed by setting aside the penalty. (Dictated and pronounced in the open court)
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2007 (10) TMI 537
Order of Appellate Tribunal - Modification of ... ... ... ... ..... under Section 11AB is chargeable only in respect of clearances effected after 29- 9-1996. rdquo 3.2 emsp In view of the above decision which is already in favour of the assessee, the ground for modification that the interest is leviable from 29-9-96 is without any basis as there was no dispute regarding this issue before the Tribunal. 4. emsp The other ground for modification relates to applicability of penalty under 11AC only from 29-9-1996. It is not as if penal provisions were not there prior to that date. In fact, the show cause notice, in this case, has invoked the penal provisions both under 11AC and 173Q. As rightly pointed out by the ld. SDR, the upper limit for imposition of penalty under Section 173Q was upto 3 times value of the goods involved. As the clearances on which duty has been confirmed are both prior to and from 29-9-1996, this ground for modification also fails. 5. emsp Therefore the modification application is rejected. (Dictated and Pronounced in Court)
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2007 (10) TMI 535
Refund - Unjust enrichment ... ... ... ... ..... ence in this regards is made to the Hon rsquo ble Supreme Court rsquo s decision in the case of M/s. Priya Blue Industries Ltd. v. CC (Prev.) reported in 2004 (172) E.L.T. 145 (S.C.). 5. emsp The refund claim also stands rejected by the Commissioner (Appeals) on the ground that they have not been able to prove that the duty burden has not been passed on to their customers. The appellant have contended that inasmuch as duty was paid by mistake, the same cannot be retained by the Revenue and what was paid by them under protest was not in the form of duty, but mere a deposit. I find that it is settled law that each and every case of refund has to pass the test of unjust enrichment. There is nothing in the written submission filed by the appellant to even remotely suggest that the duty so deposited by them has not been passed on to their customers. 6. emsp In view of the foregoing, I find no merits in the appeal and accordingly reject the same. (Pronounced in Court on 24-10-2007)
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2007 (10) TMI 534
Rectification of mistake - Recall of order ... ... ... ... ..... e to the issue involved and it seems that by mistake this order stands passed in the present appeal, whereas the same issue was involved in respect of other appeal of the same appellant. As such, there is a prayer from both the sides to withdraw the said order of the Tribunal and to decide the matter afresh. 2. emsp In view of the above, we withdraw the present order and fix the appeal for final hearing on 26-11-2007. ROM application filed by the Revenue is accordingly allowed. (Dictated and Pronounced in Court)
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2007 (10) TMI 533
100% EOU - penalty - Personal penalty - manufacture of Polyester Texturised Yarn (PTY) and Polyester Filament Yarn (PFY) - use of duty free imported raw material - imported goods diverted to local market
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2007 (10) TMI 532
Quantum of Penalty - Confiscation and redemption fine - clandestine removal - Rule 173Q/Rule 25 - confiscation of raw-material
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2007 (10) TMI 530
Cenvat/Modvat - Inputs ... ... ... ... ..... Nobody has appeared for the respondent. 4. emsp In the memo of appeal, the Revenue has nowhere contended that the issue was not covered by the Tribunal rsquo s decision or the said decision has been reversed by the higher appellate forum. They have again reiterated that the Board rsquo s Circular that should be followed. 5. emsp We find that the Commissioner has also taken into consideration the Board rsquo s Circular and has observed that the same does not clarify whether write-off in the books of accounts accompanied with physical liquidation of the inputs or only write-off in the books of accounts with the physical form of inputs being intact and found to be available in the factory. In any case, we find that inasmuch as the issue stands covered by the Tribunal rsquo s decision, the adjudicating authority was justified in following the ratio of the same. We do not find any merit in the Revenue rsquo s appeal and reject the same. (Dictated and pronounced in the open Court)
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2007 (10) TMI 529
Rectification of mistake - Error apparent on face of record ... ... ... ... ..... msp I find that the order was dictated in the presence .of the Counsel and the applicant had not raised any objection at that time. Further I find that issue involved in this appeal is regarding rebate in respect of sugar and amount involved was less than Rs.10 lakhs. Therefore, Single Member Bench was competent to hear the case. Therefore, I find no merit in the application and the same is rejected. (Order dictated and pronounced in the open Court).
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2007 (10) TMI 528
Demand - Waste and scrap ... ... ... ... ..... h waste and scrap on payment of duty, in which case, the applicability of exemption Notification is not required to be gone into. In any case, we find, as contended before us by ld. Consultant on behalf of the respondent, as they have filed a classification claiming the benefit of said notification, which was approved by the proper officer. It is also been brought to our notice that the demand relates to the period January, 1995 and they have been following this practice for the period prior to 1995 as well as thereafter. No demand prior to or subsequent to the said period has never been raised. 5. emsp We also note that the appellate authority has rightly observed that such waste and scrap of the corrugated, boxes would be covered by the provisions of Rule 57D. As such, no demand is required to be raised against the respondent. No infirmity can be found in the views of the appellate authority. Revenue rsquo s appeal is accordingly rejected. (Dictated and pronounced in Court)
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2007 (10) TMI 527
Cenvat/Modvat - Declaration - Demand - Limitation ... ... ... ... ..... rsquo s option to avail the credit. The said fact of availment stands fulfilled by the appellant by filing a declaration under Rule 57J. The Revenue objection that the said declaration was under Rule 57J and not under Rule 57G is only technical and procedural objection. As such, we find no justification for the denial of the Modvat credit. 3. emsp Apart from that we note that for the period March, 1990 to April, 1994, Show cause notice was issued on 21-2-1995 invoking extended period of limitation. When admittedly, a declaration under the Rule 57J, giving all the details of the inputs, intermediatory products and the final products stands filed by the appellant, no suppression or mis-statement with an intention to evade payment of duty can be attributed to them. As such, we also agree with the ld. Advocate on the point of the demand being barred by limitation. 4. emsp In view of the above, appeal is allowed on merits and also on limitation. (Dictated and pronounced in Court)
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2007 (10) TMI 526
Penalty and interest - Clandestine removal of inputs ... ... ... ... ..... on to account for the inputs received on which credit has been taken, a conclusion of clandestine removal of short found goods requires to be corroborated. The admission statement has been taken after several months preceded by two statements which did not accept any clandestine removal. Further, no corroborative evidence to confirm the statement dt. 4-10-01 is available. In view of this, I do not find ingredients of provisons of Section 11AC in this case. Therefore, the order of the Commissioner (Appeals) is not sustaining penalty under Section 11AC, cannot be faulted. As regards interest, it is a case of shortage where no firm date of removal not to speak of any clandestine removal can be presumed. Further credit taken has been reversed on 29-11-00/30-11-00 i.e. on the date of visit of the officers. Therefore, non-confirmation of demand of interest by the Commissioner (Appeals) is in order. 5. emsp The appeal by the department is rejected. (Dictated and pronounced in Court)
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2007 (10) TMI 524
Clandestine removal - Proof - Goods seized in intercepted tempo - Demand - Clandestine removal - Demand - Shortage of finished stock
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2007 (10) TMI 523
Export - Proof of export - Non-production of AR-4 form - Held that: - In any case, the Tribunal in the case of C.C.E., Jamshedpur v. TISCO (Tube Division) [2003 (3) TMI 191 - CEGAT, KOLKATA] has held that proof of export of goods by way of invoice, bill of lading and shipping bill is sufficient even in the absence of original copy of the AR-4 form - in the absence of any allegation that the export has actually not taken place - appeal allowed.
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2007 (10) TMI 522
Penalty - Cenvat/Modvat - Clandestine removal - Proof of ... ... ... ... ..... g to any illegal disposal of the raw material so received. In fact, it is not clear from the records as to whether during the course of the investigation, such questions have been put to the appellant. In the absence of efforts in seeking explanation for the shortage, it will not be proper to come to conclusion that there was clandestine removal of the short found goods. Clandestine removal is a serious allegation and requires being corroborated by some evidence and merely presumed based on shortage. In this case, neither any admission nor any other corroborative evidence has been relied upon as seen from the order of the Commissioner (Appeals) and the order of the original authority. 7. emsp While upholding the duty demand which is not contested, I do not find justification for sustaining the penalty on the appellant-company and the employees. 8. emsp The appeals are disposed off by setting aside the penalties imposed on all the appellants. (Dictated and pronounced in Court)
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2007 (10) TMI 519
Refund of amount of pre-deposit - Cenvat/Modvat ... ... ... ... ..... . 26,502/-. We find that the original authority as well as the appellate authority had held that these amounts have been pre-deposited voluntarily by the appellant without any protest and therefore they would be hit by time bar and there is no provision to refund the same. This argument is not correct. Once the Tribunal has given the appellants relief, the entire amount disallowed by the Commissioner Appeals has to be refunded and it is also not in dispute that the appellants had taken only a suo motu credit of Rs. 2,74,984/- leaving an amount of Rs. 1,38,372/- which has been disallowed by the Commissioner Appeals. In these circumstances the appellants are entitled for the entire amount of Rs. 1,38,372/-. The rejection of refund of an amount of Rs. 26,502/- is not correct. The Commissioner Appeals has not properly appreciated the fact and did not pass a legal order. In these circumstances, we allow the appeal with consequential relief. (Pronounced in open Court on 26-10-2007)
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2007 (10) TMI 513
Petroleum products - Supply to EOU - N/N. 17/2004-C.E. (N.T.) dated 4-9-2004 - removal of goods without payment of duty - The department took the view that, with the withdrawal of warehousing facility, the stock of petroleum products in the appellant’s warehouse should have instantly suffered duty.
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2007 (10) TMI 512
Valuation (Central Excise) - Profit - goods removed from the appellants’ factory to their buyer’s premises during the period of dispute -
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2007 (10) TMI 511
Rectification of mistake - Cross appeals ... ... ... ... ..... for reduction of penalty in their appeal. Learned SDR has apart from reiterating the above averments contained in the present application, referred to the Tribunal rsquo s decision in Commissioner of Customs (Import), Mumbai v. BMC Spinners Pvt. Ltd 2006 (198) E.L.T. 216 (Tri.-Mumbai) , wherein it was held that appeals filed by department and assessee against a particular order required to be heard and disposed of together. We have heard learned counsel for the assessee also. 2. emsp After considering the submissions, we are of the view that the above final order should be recalled and a common order should be passed in both the appeals having regard to the fact that when the assessee rsquo s appeal was taken up, the SDR was not aware of pendency of the Revenue rsquo s appeal. The present application is allowed to this extent. The two appeals are being taken up for hearing and disposal by a common order, which will be passed separately. (Dictated and pronounced in open court)
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2007 (10) TMI 510
Rectification of mistake ... ... ... ... ..... 2005 2006 (196) E.L.T. 165 (Tri. - Del.) , the appeals were restored and it was further ordered that the ROM application No. 75/01 should be placed for reconsideration. This is how the ROM application is once again listed before us. 4. emsp We have heard both sides. We find that the stay order dated 21-12-1998 was carried further by way of challenge in a writ-petition before the Hon rsquo ble Allahabad High Court which modified the stay order and the modification order was further clarified vide order dated 16-2-2000. The stay order of the Tribunal has hence merged with the orders of Hon rsquo ble Allahabad High Court dated 2-11-1999 and 16-2-2000. Therefore, the question of re-consideration of the ROM application after the Hon rsquo ble High Court order merged with the stay order does not arise. We, therefore, dismiss the ROM application in the light of above discussion. 5. emsp Notice to be issued for final hearing of the appeals. (Dictated and pronounced in the open Court)
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