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Central Excise - Case Laws
Showing 41 to 60 of 222 Records
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2007 (10) TMI 509
Sugar - Export quota - Failure to fulfil export obligation - Demand - Limitation ... ... ... ... ..... s not maintainable. 12. emsp The appellants also claimed that the adjudicating authority imposed penalty under Rule 173Q of Central Excise Rules, 1944 read with Section 11AC of the Act, which is not correct since the maximum penalty imposable under SEPA, 1958 was 10 of the duty outstanding as per Section 7(3). They also relied on the Hon rsquo ble CESTAT in the case of H.J. Patil Sahakari Sakhar Karkhana v. CCE, Aurangabad 2004 (163) E.L.T. 173 (Tri-Mumbai). I also agree with the above contention and accordingly penalty imposed under Rule 173Q read with Section 11AC of the Act is not maintainable in law. 13. emsp As the appellants have succeeded on merits as well as on time-bar aspect, other specific issues raised by the appellants but were not discussed in this order, were not taken up for discussion. 14. emsp In view of the above facts and circumstances as discussed supra all the five appeals are allowed by setting aside the impugned orders involved in all the five appeals.
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2007 (10) TMI 508
Demand, interest and penalty - Limitation ... ... ... ... ..... undertook repacking and relabelling of goods when the entire goods were transferred to their sister unit and the appellants rsquo Consultant could not reply the specific query put forth by us on this account. We also note from appeal paper that packing material was being supplied by unit No. 2 which fact also has not been disclosed to department. If they were small unit why were they unnecessarily undertaking any repacking and relabelling of the goods when the goods could have been transferred in bulk to their sister unit without undertaking any repacking and relabelling. In view of this, we do not find their conduct to be clean and therefore revenue neutrality cannot be advanced to support their claim of bona fide as held by the Apex Court in various decisions cited by the learned SDR. In view of this, we hold that extended period has been rightly invoked. In view of this, we find no merit in the appeal and accordingly reject the same. (Pronounced in the court on 17-10-2007)
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2007 (10) TMI 507
Refund - Unjust enrichment ... ... ... ... ..... order was passed by the Asst. Commissioner, but the same was not followed by the assessee inasmuch as duty was paid on the higher assessable value and also under bond was executed. However, I find that irrespective of the fact of the assessments being provisional or not provisional, the fact remains that M/s. Mitesh Brothers are the importers of the yarn, which they sent to M/s. NCBM for conversion and final product is exported by them only. No buyer of the final product in India is involved. As such, the question of passing of any incidence of duty to the third person does not arise. The respondents have also contended that the final product rsquo s price is kept in view of the international prices and in any case the same were finalized by their foreign buyer much before the dispute on the valuation arose. As such I find no justification in reversing the order of the Commissioner (Appeals). Revenue rsquo s appeal is accordingly rejected. (Pronounced in Court on 15-10-2007)
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2007 (10) TMI 506
Order of Commissioner (Appeals) - Conflicting orders ... ... ... ... ..... dated 29-11-96 held that the letter dated 6-2-96 of the Superintendent of Central Excise, may be treated as nullity on the issue, which was not challenged by the Revenue by way of filing of the appeal before the Commissioner (Appeals). It has further been held in the said order-in-appeal that the Asstt. Commissioner has to be treated the claim filed by the appellant under Rule 57H of the Central Excise Rules. Therefore, the direction of the Commissioner (Appeals) in the impugned order to submit a reply on the reasons proposed for the inadmissibility of credits given in the letter dated 6-2-96, is not sustainable. Therefore, the impugned order is modified insofar as the direction to submit a reply ldquo on the reasons proposed for the inadmissibility of the credit and letter dated 6-2-96 rdquo in the impugned order is set aside, and otherwise the impugned order is upheld. The appeal is disposed of in the above terms. (Order dictated and pronounced in open court on 10-10-2007)
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2007 (10) TMI 503
Penalty - Imposition of - Judicial discipline - Demand - Limitation - Cenvat/Modvat - Non-fraudulent availment - Demand of interest
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2007 (10) TMI 502
Duty liability - Recovery of pending excise dues - Detention order ... ... ... ... ..... on by the Superintendent the department has not pursued the matter with the Rajasthan Financial Corporation Bhiwadi by detention order has been issued against the appellant which is pre-mature action as the appellant has already deposited Rs. 28.5 lakhs with the Rajasthan Financial Corporation who became successor twice. emsp In view of the above facts, I hold that the matter of excise dues is still pending with the successor, Rajasthan Financial Corporation, thus, the detention order issued against the appellant at this stage is unjust and pre shy mature, therefore, the detention order is set aside and the appeal is allowed. rdquo 2. emsp In view of the factual position that the matter of excise dues is still pending, therefore, the Commissioner (Appeals) has rightly held that detention order issued against the appellant is unjust and pre-mature. In these circumstances, I find no merit in the appeal and the same is dismissed. (Order dictated and pronounced in the open Court)
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2007 (10) TMI 501
Rectification of mistake - Error apparent on record - Cenvat/Modvat ... ... ... ... ..... refore, the provisions of Rule 57CC are not applicable. In the case of CCE v. Allied reported in 2004 (176) E.L.T. 819, the same view was taken and the Hon rsquo ble Supreme Court dismissed the appeal filed by the Revenue. 4. emsp I find that the issue before the Hon rsquo ble Madras High Court was different whether bagasse is a manufactured product or not and the dispute in the present case is different. The respondents were availing credit in respect of inputs used in the manufacture of final product and bagasse is a waste which is generated and cleared without payment of duty. The Revenue is of the view that respondents are liable to pay 8 of the value of the exempted goods as per the provisions of Rule 57CC of Central Excise Rules. In view of the above decision of the Tribunal which is upheld by the Hon rsquo ble Supreme Court, I find no mistake apparent on record which requires rectification. The application is dismissed. (Order dictated and pronounced in the open Court)
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2007 (10) TMI 500
Rectification of mistake - Maintainability of application ... ... ... ... ..... rder. Such order passed by the Tribunal and as mentioned in the sub-section (2) of Section 35C definitely refers to the order passed by the Tribunal in terms of the provision of Section 35C(1). The said section 35C(1) refers to the order passed by the Tribunal confirming, modifying or annulling the decision or order appealed against. As such it is clear that sub-section (1) of Section 35C refers to the final order passed by the Tribunal. Accordingly, the sub-section (2) of Section 35C has to be read as if the same refers to the final order passed under sub-section (1) of Section 35C. Inasmuch as the order of restoration application filed in the present appeal was not an order passed under sub-section (1) of Section 35C, the provisions of sub-section (2) of Section 35C will not apply to the same. 4. emsp In view of the foregoing, we do not find any merits in the ROM application filed by the revenue. Accordingly, the same is rejected. (Dictated and pronounced in the open Court)
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2007 (10) TMI 499
Appeal to Appellate Tribunal - Jurisdiction ... ... ... ... ..... f passing of the order by the Commissioner (Appeals) is under Section 35A of the Act. Therefore, the contention of the ld. Advocate is not sustainable. It is seen that by show cause notice dated 20-8-2004, it was proposed to reject the rebate claim of Rs. 4,52,953/- under Rule 8 of Central Excise Rules, 2002 read with Notification No. 40/2001-C.E. (N.T.), dated 26-6-2001, as amended. The Commissioner (Appeals) by order-in-appeal dated 23-5-2007 directed the appellants to pay back the amount of Rs. 2,42,427/- along with interest against rebate claim. Thus, it is clear that the case relates to rebate of duty on export. Therefore, I find that as the case relates to rebate of duty and the order is passed by the Commissioner (Appeals) under Section 35A of the Act, therefore, this Tribunal has no jurisdiction to decide the matter. Accordingly, the appeal along with the stay application are rejected and as not maintainable. (Order dictated and pronounced in open Court on 8-10-2007)
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2007 (10) TMI 498
Cenvat/Modvat ... ... ... ... ..... e of such capital goods is essential for smooth running of plant with greater efficiency. In other words, the goods in question are essential supplement to the plant and machinery for use in manufacturing goods, for its greater efficiency and better results and thus, it is an integral part of the process with which the primary machines are engaged. Looked from these aspects, there is no impediment for the goods in question qualifying as capital goods eligible for Modvat credit rdquo . 4. emsp In the present case, these items were used for installing batch vessel which forms part of the machine. It is seen that without the base of the machine the principal plant and machinery cannot function properly. Therefore, Cenvat credit on these items used for base of the machine cannot be denied. Hence, I do not find any reason to interfere with the order of the Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is dismissed. (Dictated and pronounced in the open Court)
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2007 (10) TMI 497
... ...
... ... ..... of denial of exemption need not be attached, keeping in view the injustice that may be called in a genuine case where the certificate is obtained but is not handed over to the Revenue in time for unavoidable reasons. In this context, the learned authorized representative for the Appellant has justifiably placed reliance on the decisions of the Tribunal in the case of reported in Oil India Ltd. Collector of Customs, 1992 (57) E.L.T. 449 (T) and S.K.F Bearings India Ltd. v. Collector of Customs, Bombay, reported in 1999 (109) E.L.T. 774 (T), in which, relying upon the substantial compliance theory, mere late production of essentiality certificate was held not to be sufficient for denying the benefit of exemption. 5. emsp For the foregoing reasons, the impugned order of the Appellate Commissioner and the adjudication order cannot be sustained and are hereby set-aside. The appeal is accordingly allowed. (Dictated and pronounced in the open Court on the 31st day of October, 2007)
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2007 (10) TMI 494
Demand - Limitation ... ... ... ... ..... notes, for short receipt of the inputs. On perusal of the records it is seen that the show cause notice is demanding the reversal of the duty for the period 1999 to 2003 on the inputs received short. The show cause notice was issued on 8-7-2005, the ld. Consultant produces before me a letter written by the Superintendent directing the respondents to comply with the audit report of short receipt of the inputs and reversal of the credit thereof. It is seen that the said letter was written by the Superintendent on 19-3-2000. The Superintendent rsquo s letter was reproducing the audit para, which showed the issuance of debit notes and the revenue authorities did not think it fit to follow up and ask for further clarification from the respondent in respect of the short receipt of the inputs. Hence the finding reached by the ld. Commissioner (Appeals), that the show cause notice is hopelessly time barred and does not require any interference. Appeal is rejected. (Dictated in Court)
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2007 (10) TMI 492
Stay/Dispensation of pre-deposit - Cenvat/Modvat - Penalty ... ... ... ... ..... irrespective of the fact that the goods were sold by the assessee on FOR destination basis and that the property got transferred to buyer at the port. The CBEC has by its circular dated 23-8-2007 (No. 97/8/2007) clarified in paragraph 8.2 that if it can be established by the claimant of the credit that the sale and the transfer of property in goods occurred at some other place, the credit of service tax paid on the transportation up to such place of sale would be admissible. Since there is a finding in the present case that the property got transferred to the buyer at the port, a prima facie case is made out for waiver of pre-deposit It is, therefore ordered that there will be interim stay of the impugned order against recovery of the Cenvat credit and penalty during the pendency of this appeal without any requirement of pre-deposit. The appeal will come up for final hearing in its due course. The application is accordingly allowed. (Dictated and pronounced in the open Court)
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2007 (10) TMI 491
Stay/Dispensation of pre-deposit - Penalty ... ... ... ... ..... 6 of Central Excise Rules as the applicant has not dealt with any offending goods. 2. emsp The contention of the Revenue is that amount of more than Rs. 4 crores was seized from the office cum residence of Proprietor of M/s. Shyam Traders and subsequently the stand was taken by the assessee that currency belongs to M/s. Shyam Vanaspati and this was done at the advice of the applicant. Therefore, the appellant had connived with M/s. Shyam Traders to show that currency, which is sale proceed of clandestinely removed goods, belongs to another firm. 3. emsp We find that in this case the penalty under Rule 26 of Central Excise Rules is imposed. The appellant is only a consultant to the firm. There is no evidence on record to show that he has tempered with the account books to explain the seized amount. In these circumstances, prima facie, the applicant has strong case in their favour. Therefore, whole of the penalty is waived. Stay petition is allowed. (Dictated in the open Court)
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2007 (10) TMI 489
Penalty - Imposition of - Cenvat/Modvat ... ... ... ... ..... under the provisions of Section 11AC of the Central Excise Act, 1944 read with Rule 13 of the Cenvat Credit Rules, 2004. The learned SDR submits that once it has been held that the respondent is liable to pay the confirmed duty demand consequently penalty under Section 11AC has to be imposed upon them. 4. emsp On a perusal of the records it is seen that the allegation against the respondent which result the confirmation of demand of duty was in respect of wrong availment of Cenvat credit on the capital goods. The respondents had availed 100 credit on the capital goods while they are permitted to avail only 50 credit. In all I find that the allegations on the respondents were falling short of the ingredients that are mentioned under Section 11AC for imposition of penalty. As such the findings reached by the Commissioner (Appeals) in this case are correct and does not warrant any interference. 5. emsp Accordingly the appeal filed by the Revenue is rejected. (Dictated in Court)
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2007 (10) TMI 488
Interest and penalty - Cenvat/Modvat ... ... ... ... ..... cess paid on the CVD. On being pointed out by the revenue, appellant reversed the entire credit taken by him on 24-5-2007. A show cause notice was issued to the appellants on 15-5-2006 for imposition of penalty under the provisions of Rule 27 of Central Excise Rules, 2001/2002 and interest under Section 11AB of CETA 1944. The appellant is required to pay the interest for the Cenvat credit, which has been wrongly availed by him. The provisions have been amended with effect from 11-5-2001. As regards the penalty, I find that this case is of a mis-interpretation of availment of credit education cess paid on customs duty. The eligibility of education cess on the customs duty, was a disputed issue in the initial period. As such, I find no reason for imposition of penalty on the appellant. Accordingly, the impugned order to the extent it confirmed the amount of interest is upheld and the portion upholding imposition of penalty is set aside. Ordered accordingly. (Dictated in Court)
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2007 (10) TMI 487
Order - Speaking/Reasoned order - Classification of goods ... ... ... ... ..... e Department and when the circular was not challenged by Revenue. In view of several developments that has been noticed from the citations with regard to meaning of the impugned goods and reasoning stated by different forums it would be proper to have a fresh look on the entire matter examining nature of the goods minutely. 6. emsp On the light of the aforesaid observation and findings we may hold that the ld. Adjudicating Authority should consider the entire issue afresh which relates to the period from 1-3-92 to 30-6-96 on the basis of evidence, governing facts, attendant, circumstances, legal/technical submissions, circulars relied by both sides as well as citations to do justice to both sides. We expect the order should be reasoned and speaking affording reasonable opportunity of hearing to the Appellant so that the matter can be resolved without repetitive litigation or further controversy. Appeals are allowed by way of remand. (Pronounced in the open Court on 3-10-2007)
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2007 (10) TMI 484
Compounded levy scheme - Independent textile processor ... ... ... ... ..... ery etc. If the intention was to the effect that all the units, which were registered under the Central Excise, are required to make a declaration, the words used in para 7 would not have been to the effect that the application is required to be made prior to the commencement of commercial production. On the contrary the said rule would have used the expression that an application is required to be made immediately after taking the central excise registration. As such, we are of the view that by merely applying for central excise registration appellant cannot held to be an existing and processing factory, so as to be hit by para 7(2) of the Notification, which only relates to units which were in existence and had some previous year rsquo s production. 9. emsp In view of the above, we do not find any merits in the Revenue rsquo s stand. The impugned order is accordingly set aside and appeal allowed with consequential relief to the appellant. (Pronounced in Court on 22-10-2007)
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2007 (10) TMI 483
Demand - Clandestine removal - Appreciation of Evidence - job-work - man-made fabrics - Held that: - sufficient evidence exists on record to lead us to only one and inevitable conclusion that the appellant was indulging in the clandestine activity and has cleared processed man-made fabrics without payment of duty - appeal rejected.
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2007 (10) TMI 482
Demand and penalty - Export Oriented Units - Adjudication - EOU - Jurisdiction - demand under Section 28 of the Customs Act
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