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Central Excise - Case Laws
Showing 61 to 80 of 222 Records
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2007 (10) TMI 479
SOLITAIRE MACHINE TOOLS LTD. Versus COMMISSIONER OF C. EX., VADODARA
... ... ... ... ..... issued in Jan rsquo 96 in respect of the very same clearances, issue of another show cause notice in April lsquo 96, including the demand proposed in the earlier show cause notice issued on 19-1-96 and proceeding with two separate adjudication and confirmation of two demands are not permissible. It is also noticed that the two demands have been issued after issue of second show cause notice. The second demand amounting to Rs. 2,39,951/- includes the amount already included in the order of the original authority arising out of the show cause notice dt. 19-1-96 which is not legal and proper. We have already noted that no appeal has been filed against the order of demand in pursuance of show cause notice dt. 19-1-96. The present order of the Commissioner (Appeals) arising out of the show cause notice dt. 12-4-96 cannot be allowed to survive. 6. emsp Therefore, the order of the Commissioner (Appeals) is set aside and appeal allowed with consequential relief. (Pronounced in Court)
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2007 (10) TMI 478
Natural justice - Hearing - Notice therefor ... ... ... ... ..... notices of Personal Hearing, even if sent by Speed Post/Courier, would have reached the Appellant instantly, is to get locked in an untenable reality. Even 24 hours notice has not been given. Ah What oppressive generosity? As Sir Walter Scott said ldquo Oh What a tangled web we weave, when first we practice to deceive. rdquo 4. emsp Eternal vigilance against executive arbitrariness, whenever their conduct erodes or threatens to erode a tax payer rsquo s genuine rights, is needed, to distinguish between the bogus and spurious, on the one hand and the genuine and the authentic on the other. 5. emsp The impugned order stands set aside as being grossly violative of natural justice. Appeal allowed by way of remand. Needless to reiterate but reluctantly compelled to do so, in the peculiar facts and circumstances of the instant case, proper notices shall be sent and after grant of personal hearing, appropriate orders, to be passed as per law. 6. emsp Appeal allowed by way of remand.
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2007 (10) TMI 477
Remand powers of Commissioner (Appeals) - there is no substance in the challenge against the power of remand exercised by the Commissioner (Appeals)
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2007 (10) TMI 476
Lamp caps (Electric) damaged during manufacture ... ... ... ... ..... als, and metal goods definitely not usable as such because of breakage cutting-up, wear or other reasons. rdquo According to the department, damaged goods are mainly made of aluminium and are therefore metal goods and they are definitely not usable as such for the reason that it has not been shown to be capable of being used as a part of the electric lamp. We agree with the Revenue that the evidence relied upon by the respondents to support the claim that it is usable is only the letter of a trader who is not actual user of the goods and therefore his averment that the damaged caps are sold to cottage industry for manufacture of lamps is not sufficient for the purpose of holding that the metal goods in question namely the damaged lamp caps are usable as such. 3. emsp We, therefore, accept the contention of the Revenue that the goods in question are waste and scrap of aluminium under sub-heading No. 7602.00, set aside the impugned order and allow the appeal in the above terms.
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2007 (10) TMI 475
Exemption - Goods manufactured in gram udyog ... ... ... ... ..... l apply to waste and scrap arising in the factory in which goods other than exempted goods are also manufactured. The claim to the benefit of 88/88 is on the ground that the Spent Acid is used further in the manufacture of detergent cake and detergent powder. However, the claim to this benefit cannot be accepted for the reason that the Spent Acid cannot be considered as goods consumed in the manufacture of detergent cake and detergent powder and further, the appellants have cleared Spent Acid from their factory and therefore requirement of captive consumption either within their factory of production of goods specified at Sr. No. 1 to 27 of the table to notification 88/88 as per serial No. 28 or in any other factory of the same manufacturer where the exemption under this notification is availed, does not stand complied with. 2. emsp For these reasons, we hold the benefit under notification is not available, uphold the impugned order and reject the appeals. (Dictated in Court)
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2007 (10) TMI 474
Demand - goods cleared for export - Non-fulfillment of procedure under N/N. 43/2001-C.E. read with Board’s Circular No. 106/17/95/CEX dated 2-3-95.
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2007 (10) TMI 472
Cenvat/Modvat - Waste and scrap - Dutiability ... ... ... ... ..... ench in Indian Aluminium case is distinguishable. 5. emsp I have gone through the matter. This Bench, in the case of Zuari Cement Ltd. (cited supra), has extracted the definition of Waste and Scrap as appearing in Section XV of Central Excise Tariff which clearly lays down that scrap, which is generated as a result of mechanical working of metals, are required to discharge duty. In the present case, the Capital Goods have utilized their utility and they are removed as old machineries. Likewise, drums, which have been removed in the matter, do not come within the definition of Section XV of CET. Therefore, the Indian Aluminium case is clearly distinguishable. All the judgments relied by the learned Counsel refers to Supreme Court judgments as well as other Tribunal rulings. Therefore, the issue is covered in assessee rsquo s favour. Respectfully following the ratio of those orders, the impugned order is confirmed by rejecting the appeal. (Pronounced and dictated in open Court)
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2007 (10) TMI 471
Remission of duty - Destruction of goods in fire - sugar destroyed - Held that: - fire was on account of electric short circuit. The same definitely could have been avoided in the same manner in which every fire incident on account of short-circuiting are capable of being avoidable. Every fire incident can admittedly be avoided and that does not mean that the same has occurred on account of unavoidable reasons. In which case no fire accident would get covered by the expression “unavoidable circumstances”. As such, the rejection of remission claim of the appellant was not justified - appeal allowed.
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2007 (10) TMI 470
Refund - Limitation - Provisional assessment ... ... ... ... ..... old that in the absence of order passed in terms of Rule 9B of the Central Excise Rules, 1944, the assessment cannot be treated as provisional. Therefore, the claim of the appellant that it is a case of provisional assessment and therefore, limitation will not operate against them is not tenable. As regards the finding of the Commissioner (Appeals) that duty was not paid under protest during the relevant period, we have examined the duty paying documents and find that there was no endorsement of duty paid under protest. Further, in the appeal before the Tribunal, the appellants have not substantiated the plea taken before the authorities below that they had paid duty under protest during the relevant period therefore, for this reason also, claim has been rightly held to be barred by limitation. Authorities below have therefore rightly held that the claim is barred by limitation. We, therefore, uphold the impugned order and reject the appeal. (Order Dictated in the open Court)
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2007 (10) TMI 469
Demand - Limitation - Misdeclaration ... ... ... ... ..... per pouches and for which classification was claimed under Chapter Heading 48.17 have been found to be goods classifiable under Chapter Heading 48.19 which does not cover paper pouches (it covers paper bags etc.) and the finding on classification not having been challenged in the appeal before the Tribunal, the appellants are accepting that the goods are paper bags and not paper pouches. Therefore, declaration of the goods as paper pouches is a deliberate misdeclaration and therefore, the extended period of limitation is rightly available to the department. We, therefore, hold that the demand applying the extended period of limitation is sustainable and accordingly, uphold the same. There is also no ground for reducing the penalty, having regard to the fact that the penalty has already been reduced by the Commissioner (Appeals). We, therefore, uphold the penalty. 3. emsp In the result, the impugned order is upheld and the appeal is rejected. (Order Dictated in the open Court)
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2007 (10) TMI 467
Appeal to Appellate Tribunal - Maintainability of ... ... ... ... ..... ayment of duty (d) credit of any duty allowed to be utilized towards payment of excise duty on final products under the provisions of this Act or the Rules made thereunder and such order is passed by the Commissioner (Appeals) on or after the date appointed under Section 109 of the Finance (No. 2) Act, 1998. rdquo 5. emsp On a plain reading of the above said proviso to Section 35B(1), it is very clear that the jurisdiction of Appellate Tribunal has been taken away, in case the goods exported outside India without payment of duty. In this case it is undisputed that the goods have been cleared for export without payment of duty by executing a bond, as such, Tribunal has no jurisdiction to entertain dispose the appeal. 6. emsp Accordingly, the appeal is not maintainable and remedy lies under Section 35EE of Central Excise Act, 1944, by way of revision application to the Central Government of India. Accordingly, the appeal is disposed off as not maintainable. (Dictated in Court)
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2007 (10) TMI 466
Rectification of mistake - Mistake apparent on record ... ... ... ... ..... respect of one show cause notice dated 3-4-2000. This break up covered only a total value of Rs. 1,34,44,999/- in one show cause notice as against the over all total value of Rs. 2,09,54,735/- in twenty show cause notices. 7. emsp We do not find any infirmity apparent on record on our decision on merits. Having said that, in the interest of justice, we direct the commissioner to re-determine the differential duty involved by getting the break up of value in respect of amounts mentioned in other 19 show notices as well and examining their plea that there is demand of duty on value on which they have already paid duty. The applicant shall file written submissions along with supporting documents within 45 days from the receipt of this order and the commissioner shall decide expeditiously thereafter and within two months after the expiry of time limit given for filing written submission. 8. emsp The application is disposed off on the above terms. (Pronounced in Court on 22-10-07)
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2007 (10) TMI 465
Cenvat/Modvat - Inputs - Duty paying documents ... ... ... ... ..... M/s. Keetex, who was the supplier of inputs was only a trader and not a manufacturer. In such a situation it cannot be said that they had taken reasonable care to verify that the credit availed by them is in accordance with the provision of Rule 9 of the Cenvat Credit Rules. I further notice that under Rule 6 of the Cenvat Credit Rules, 2004 only an invoice issued by manufacturer is to be considered as a duty paying documents for availing credit. In the present case it is an admitted fact that after omission of Rule 12B. M/s. Keetex cannot be considered as a manufacturer, which fact was in the knowledge of the appellant. Once the very documents on the basis of which credit has been taken cannot be considered as valid duty paying documents for the purpose of availing credit, the credit on the basis of such documents cannot be allowed and therefore has been rightly denied. I accordingly uphold the order of the Commissioner (Appeals) and dismiss the appeal. (Pronounced in Court)
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2007 (10) TMI 463
Penalty - Quantum of - Clandestine removal not involved ... ... ... ... ..... ty criteria for SSI exemption was got changed under Notification No. 8/2003-CE, dt. 1-3-03. The appellants had accepted the duty liability very gracefully. The provisions of penalty stands rightly invoked. However, on the quantum of penalty, they are more than enough mitigating circumstances warranting imposition of penalty for much lesser amount. Therefore, I hereby reduce the penalty on the appellant from Rs. 3.75 lakhs to only Rs. 25,000/-. rdquo 6. emsp The Commissioner (Appeals) has reduced the penalty based on the above findings. No valid grounds have been adduced to interfere with the above findings of the Commissioner (Appeals). Therefore, the appeal is liable to be rejected. The Cross-objection filed by the respondent seeks upholding the order of the Commissioner (Appeals). 7. emsp In the light of the above, the appeal filed by the department is rejected. The cross-objection connected to this appeal is also disposed off accordingly. (Dictated and Pronounced in Court)
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2007 (10) TMI 429
Whether Refund of Cenvat Credit paid on inputs (AED T&T) used in the manufacture of final products exported under rebate claim under Rule 18 of Central Excise Rules, 2002 on payment of duly, is allowed under Rule 5 of Cenvat Credit Rules, 2002 - assessee filed refund claim in respect of unutilised Cenvat Credit of Additional Excise Duty (Textiles and Textile Articles) paid on the inputs - assessee had exported finished goods on payment of Basic Excise Duty under rebate claim covered by Rule 18 of Central Excise Rules, 2002 - no Additional Excise Duty (T&T) was chargeable on the finished goods therefore, the Cenvat Credit of Additional Excise Duty (T&T) paid by the assessee on inputs remained unutilized. The rebate claim made by the assessee under the Excise Rules, 2002 was granted to them. Thereafter, the assessee filed refund claim of Additional Excise Duty (T&T) paid on inputs under Rule 5 of the CC Rules, 2002 – Held that:- refund allowed.
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2007 (10) TMI 427
Stay order - avoidable litigation, which the appellant department has undertaken - argument that under Section 35-C(2A) of the Act, the appeal is required to be heard within 180 days, would also be frivolous as the stay order is not co-terminus with the period prescribed for disposal of the appeal.- Held that:- Supreme Court in the case of Kumar Cotton Mills (P) Ltd. (2005 - TMI - 47203 - SUPREME COURT OF INDIA) department should have been careful in filing such frivolous appeals, which involved unnecessary expenditure and time that could have been devoted on better activities. appeal is accordingly dismissed.
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2007 (10) TMI 426
Cum duty price - Whether the price at which the respondent sold the product should be treated as cum duty price and therefore the excise duty should be deducted from the price for arriving at the assessable value - remanded back to the Commissioner for re-quantification against which the revenue has no grievance Brand name of a foreign company - Whether affixation of brand name of a foreign company but otherwise registered in the name of the Indian company would disentitle the Indian company namely the assessee to the benefit of exemption under SSI notification 1/93 - revenue did not challenge the judgment of the Calcutta High Court in ESBI Transmission Pvt. Ltd. v. CCE (1992 -TMI - 44473 - HIGH COURT, CALCUTTA) and (1994 -TMI - 44498 - HIGH COURT, CALCUTTA), the revenue cannot be permitted to re-agitate the point which is concluded by the aofre-mentioned judgment of the Calcutta High Court in the present appeal, Tribunal against the revenue relying upon a judgment of Calcutta High Court in the case of ESBI Transmission Pvt. Ltd.
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2007 (10) TMI 423
Provisional assessment - refund - unjust enrichment - Assessment of goods on provisional basis on the ground that the quantum of deductions e.g. cash discount, quantity discount and rate difference were not known at the time of removal of goods which came to be known at a later date - request for provisional assessment was granted, refund – held by the Commissioner (Appeals) as well as the Tribunal that once it has been proved as a fact that incidence of tax has not been passed on to the consumer then the refund by credit notes has to go back to them only. In such a case the principle of unjust enrichment would not be attracted because the duty has not been collected and pocketed by the assessee-respondent, diverting such an amount to the Consumer Welfare Fund would be wholly unauthorized and Article 265 of the Constitution would make such an order wholly unconstitutional, appeal filed by the revenue-appellant is without any substance and the same is accordingly dismissed.
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2007 (10) TMI 422
Condonation of delay of 190 days in filing the appeal – Held that:- provision under Section 35C read with Section 35B(3) of the Act, filing of the present appeal has to be viewed as an illustration of frivolous litigation preferred by the Department, fact finding inquiry be held to find out the person who had advised filing of such appeal. The aforesaid inquiry be completed within a period of one month from the date of receipt of copy of this order, the costs of Rs. 5,000/- shall be deducted from the pay of the employee who had advised filing of the instant appeal.
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2007 (10) TMI 421
Levy of excise duty - limitation - constitutional validity of Section 4A of the Central Excise Act, 1944 - Held that:- petitioners had moved this Court within a period of one month from the date of receipt of the impugned order of the Commissioner (Appeals), petitioners filed appeals against order of the Commissioner (Appeals) within one month from today, the Tribunal shall hear and decide the appeals on merits without raising the bar of limitation, appeal disposed off
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