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Central Excise - Case Laws
Showing 41 to 60 of 246 Records
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2007 (4) TMI 584
Appeal to Appellate Tribunal ... ... ... ... ..... Vice-President . ndash The application for early hearing of the above appeal is allowed, as the amount involved exceeds Rs. One crore. The appeal is now fixed for hearing on 11-6-07
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2007 (4) TMI 583
Refund - Excess duty paid - Penalty - Procedural non-compliance - Refund - Excess duty paid ... ... ... ... ..... to the Respondents. There is no evidence forthcoming from the Department that the said invoice has been used for transportation of another consignment. As regards the contention of the ld. SDR that the appellants have violated the provisions of Rule 173G(2) in not cancelling the invoice and no intimation was given to the Jurisdictional Officer, the Departmental Authorities are free to take penal action as provided under the rules for violation of the said provisions. As regards the discrepancy between the second invoice and the goods cleared against the same, the Department is also at liberty to take necessary action as warranted. However, the refund as correctly held by the Lower Appellate Authority, cannot be denied against the first invoice since the amount has been paid extra and no goods have been cleared against the said invoice. In view of my finding as above, the Department rsquo s appeal is rejected at the admission stage. (Dictated and pronounced in the open Court)
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2007 (4) TMI 582
Rectification of mistake - Quantification of duty demand ... ... ... ... ..... l. The applicant is legal heir of Shri Shaymrao Ramchandra Maskar, as such the penalty is not recoverable from him. It is stated that the entire duty amount has been paid before issue of show cause notice. The applicant has also enclosed death certificate of the deceased. He also refers to the Hon rsquo ble Calcutta High Court decision wherein it is ruled out that in case, death of accused before recovery of the penalty amount, the same cannot be recovered from the legal representative of accused. We are convinced with the fact that the proprietor of M/s. Modern Industries died on 10-3-2005 as per death certificate enclosed herewith. We are also convinced that the applicant is legal heir of the proprietor of M/s. Modern Industries and penalty is not recoverable from the legal heir. The duty is said to have been already deposited with the department. Therefore, the penalty cannot be recovered from the applicant. Accordingly the ROM application is allowed. (Pronounced in Court)
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2007 (4) TMI 581
Rectification of mistake - Order of Appellate Tribunal - printing mistake in Notification G.O. (MS.) No. 256/95-LAD dated Thiruvananthapuram, 14th November, 1995 - Held that: - When the Tribunal passed the Final Order, this position was not brought to the notice of the Bench. Therefore, there is no mistake committed by the Tribunal.
In the interest of justice and fair play, we recall the Final Order and re-hear the matter on 11th June, 2007.
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2007 (4) TMI 579
Appeal to Appellate Tribunal - Limitation ... ... ... ... ..... left the services. The assessee sworn to the effect that he received the copy of the order just one week before filing this appeal, hence the delay. The delay has been satisfactorily explained and the circumstances were beyond the control of the assessee. Hence the delay is condoned. List the stay application in its turn. (Dictated in Court)
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2007 (4) TMI 578
Appeal to Appellate Tribunal - Hearing ... ... ... ... ..... 20 lakhs. The prayer is not opposed. In view of the high revenue and the appellant being a Govt. of Kerala undertaking unit, the prayer for early hearing of the appeal is accepted. The Miscellaneous application is allowed. The matter to come up for hearing on 10th May 2007. (Pronounced and dictated in the open court)
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2007 (4) TMI 575
Machinery parts - Classification of ... ... ... ... ..... l authority by adducing appropriate evidence within the scope of the SCN. It appears from the records that the Revenue has a case that the assessee had supplied the goods as ldquo replacement parts rdquo . Apparently, the assessee is contesting this plea. This question can also be settled at the original level. Whether the Board rsquo s circular cited by ld. SDR is applicable to the facts of this case is yet another question which can be considered by the original authority, if it is found to be within the scope of the SCN. Since the department has not furnished a copy of the SCN, we are not immediately in a position to ascertain its scope and ambit. 4. emsp In the result, the impugned order is set aside and this appeal is allowed by way of remand, directing the original authority to pass fresh order of adjudication after giving both sides a reasonable opportunity of being heard, and having regard to the observations made in this order. (Dictated and pronounced in open court)
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2007 (4) TMI 572
Refund - Production capacity based duty ... ... ... ... ..... orted in 2006 (74) RLT 233, laying down that even if the correctness of the ACP is not challenged, the law declared by Hon rsquo ble Supreme Court in case of SPBL Limited 2002 (146) E.L.T. 254 (S.C.) holding that length of galleries can not be taken into consideration while determining the number of chambers, the applicability of the same should be considered. We find that in present case, the ACP was challenged by appellant and was held in favour of the appellant by Tribunal rsquo s decision. The consequence of the same would be that ACP is required to be re-fixed in terms of said decision and whatever demand or refund has arisen as a consequence, would be liable to be confirmed or refunded especially in terms of Mumbai High Court judgment referred supra. 6. emsp In view of the above, we set aside impugned order and remand the matter to original adjudicating authority for fresh decision, in the light of the observations made by us as above. (Pronounced in Court on 27-4-2007)
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2007 (4) TMI 571
Appeal by Department - Authorisation - Validity of ... ... ... ... ..... er, nor any reasons for coming to such an opinion has been recorded in the authorisation. As such, such an authorisation cannot be taken as a valid authorisation in the eyes of law. Consequently, the appeal filed pursuant to invalid authorisation is not maintainable and the same is dismissed. (Dictated and Pronounced in the open Court.)
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2007 (4) TMI 570
Exemption under Notification No. 50/2003-C.E. ... ... ... ... ..... dt. 21-1-04 signifies that if 25 increase is achieved by way of modernization, even then the unit would be deemed to have satisfied the conditions. (c) As long as there is increase of 25 in the installed capacity, other criteria seem to have met i.e. accretion in installed capacity by not less than 25 . 33. emsp The aforesaid Order-in-Original No. 09-17/Commr./MRT-I/06, dt. 28-2-06 has been accepted by the Department. The issue involved in the instant case is similar to the aforesaid case of M/s. Purshottam Industries Ltd. 34. emsp In the light of above discussions and case laws, I find that the appellants are entitled for exemption under Notification No. 50/2003-C.E., dt. 10-6-03 with regard to achievement of substantial expansion. Since the appellants are entitled for the aforesaid exemption notification, impugned demand of duty, interest and penalty on the appellants is not sustainable. 35. I thus allow the appeals filed by the appellants with consequential relief to them.
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2007 (4) TMI 568
Manufacture - Labelling and Re-labelling of medicaments ... ... ... ... ..... ral Excise against which the present appeal has been filed. 2. emsp We have heard both sides. 3. emsp We find that in the case of Johnson and Johnson, the Tribunal had held that merely labelling or re-labelling or containers is not sufficient for the purpose of attracting the deemed fiction in Note 5 to Chapter 30 but that re-packing from bulk pack to retail pack was also required to be carried out so as to attract Note 5 to Chapter 30. The Apex Court has upheld the Tribunal rsquo s decision, as seen from the decision cited supra. In the present case, there is no charge or finding that the appellants undertook the process of re-packing from bulk to retail, in addition to carrying out the process of labelling. The Apex Court rsquo s decision is, therefore, applicable on all fours to the facts of the present case. Following the ratio thereof, we set aside the impugned order and allow the appeal. The cross-objection filed by the Revenue is also disposed of. (Pronounced in Court)
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2007 (4) TMI 564
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... he dealer must obtain registration by due date would be asking almost for the imposable, especially from the assessee who is merely a purchaser. Therefore, the denial of Modvat benefit only on this technical plea is not justified in law, especially when all other requirements have been fulfilled by the supplying dealer. rdquo (Emphasis supplied) 3.3 emsp It is noticed that the object of the statute shall be fulfilled if Modvat credit is granted to the Respondent and that too in absence of contrary finding against the dealer who issued invoice. Invoices showing that the goods were duty paid were not disputed by Revenue. It would therefore frustrate interest of justice if the Respondent is denied of respective benefit when there was no cogent evidence brought to record that the goods sold to the Respondent had escaped duty. 4. emsp In view of the aforesaid position of law, Revenue does not succeed in its appeal. Thus its appeal dismissed.. (Dictated and pronounced in the Court)
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2007 (4) TMI 561
Production capacity based duty - Natural justice ... ... ... ... ..... the appellants has pointed out that, in a subsequent letter dated 16-6-98, learned Commissioner determined the ACP afresh after taking into account only one furnace. The new ACP is 12,800 MTs. We have heard learned SDR also. 2. emsp After considering the submissions, we have found substance in the grievances raised by the appellants. Determination of ACP was a quasi-judicial function and the party ought to have been given a reasonable opportunity of being heard by the Commissioner before determining their ACP. The Commissioner rsquo s letter communicating the ACP to the party does not indicate that any such opportunity was granted to them. Hence the determination of ACP under challenge is set aside and the Commissioner is directed to determine the ACP of the appellants afresh for the period covered by the aforesaid letter dated 16-9-97 after giving them a reasonable opportunity of being heard. The appeal stands allowed by way of remand. (Dictated and pronounced in open Court)
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2007 (4) TMI 558
Demand, penalty and confiscation - Exemption - Captive consumption ... ... ... ... ..... of the goods which were not even seized by the Department. As regards penalty of Rs. 10.00 lakhs (Rupees Ten Lakhs), the ld. Counsel appearing for the appellants fairly states that as there was some lapse in maintenance of the accounts of the impugned goods which were taken for use in relation to the manufacture of finished goods and no payment of duty was made in time on goods which were taken for other use. Hence, for non-maintenance of accounts and non-payment of the duty on 500 MTs at the time of their removal, the appellants are liable to pay some amount of penalty. Accordingly, we determine a penalty of amount of Rs. 1.00 lakh on the appellants for such contravention and consequently, we order that the amount of penalty of Rs. 10.00 lakhs, imposed under Rule 173Q of the Central Excise Rules, 1944 be reduced to Rs. 1.00 lakh (Rupees One Lakh). The appeal is allowed in the above terms. The Stay Petition also stands disposed off. (Dictated and pronounced in the open Court)
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2007 (4) TMI 557
Natural justice ... ... ... ... ..... not relied upon were collected by the petitioner in December, 2005 and they requested for one month rsquo s time to reply to the notice, but the case was decided in December 2005 itself and in such circumstances, the Court set aside the order-in-original confirming the demand and remitted the case to the Commissioner, permitting the petitioners to file reply to the show cause notice and directing personal hearing being granted to them. Following the ratio of the above decision, we set aside the impugned order which has been passed in violation of the principles of natural justice and remit the case to the jurisdictional Commissioner for fresh decision after furnishing copies of documents (not relied upon) requested by the assessees, and to permit them to file reply to the show cause notice and then pass fresh orders after extending a reasonable opportunity to the appellants of being heard in their defence. 5. emsp The appeals are thus allowed by remand. (Pronounced in Court)
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2007 (4) TMI 556
Production capacity based duty - Demand and penalty ... ... ... ... ..... he basis of one machine installed, and, therefore, since the application for special provisions had been granted in accordance with Rule 96-ZA(1) of the Rules, penalty under Rule 96-ZE(iii), could not have exceeded Rs. 2,000/-. Accordingly, in respect of each of the show cause notices relating to the period prior to the date of closure on 21-2-1998, penalty could not have exceeded Rs. 2,000/- and total penalty of Rs. 4,000/- alone could be imposed. The order imposing total penalty of Rs. 82,000/- cannot, therefore, be sustained. 9. emsp It is accordingly ordered that the appellant shall pay a total duty amount of Rs. 15,000/- under Rule 96-ZB of the said Rules read with Section 11A of the said Act along with interest due thereon under Section 11AA of the Act and shall also pay the reduced penalty of a total amount of Rs. 4,000/- (Rupees Four thousand only). The impugned order is accordingly modified and the appeal is partly allowed. (Dictated and pronounced in the open Court)
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2007 (4) TMI 551
Cenvat/Modvat - Utilization of credit ... ... ... ... ..... r paying education cess. The said rule does not put any restriction of utilization of the Basic Duty Credit. 6. emsp The Ld. SDR refers to the second proviso to Rule 4 of the Cenvat Credit Rules, 2004 but I find that the said proviso merely limits the credit of duty paid on inputs for utilisation for payment of duty on the finished goods in which the said inputs have been used in respect of manufacturers availing certain exemptions including the aforesaid exemption No. 32/99. This proviso also merely puts a restriction that the input duty credit cannot be utilized for paying duty on other final products which is not the case in respect of the Respondents. 7. emsp In view of the legal provisions analysed above and in view of the cited case law, I am of the view that the orders passed by the Lower Appellate Authority are legal and proper and the Department rsquo s appeals do not have any merit. Hence all the five appeals are rejected. (Dictated and pronounced in the open Court)
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2007 (4) TMI 549
Cenvat/Modvat - Inputs - Limitation for taking credit ... ... ... ... ..... ble Supreme Court has also held that the amendment applies to manufacturers who are seeking to take credit beyond the period of six months and therefore, by denying such credit, there is no retrospective application of the amended Rule. In view of the fact that the Hon rsquo ble Supreme Court has pronounced its verdict on an exactly similar case and has held that the credit cannot be allowed under the amended Rule and has held such disallowance to be prospectively valid, the argument of Shri Khaitan that recourse can be taken to Section 38A of the Central Excise Act, 1944 to grant benefit to the appellants, can not be accepted. 4. emsp In view of the foregoing, and following the aforecited decision of the Hon rsquo ble Supreme Court in Osram Surya (P) Ltd. (cited supra), I hold that the appellants are not entitled to the credit taken beyond six months from the dates of the relevant invoices and consequently, their appeal is rejected. Dictated and pronounced in the open Court.
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2007 (4) TMI 548
Refund - Unjust enrichment - Held that: - The fact that excise duty was shown in the invoice is not conclusive evidence to say that the excise duty burden has been passed on to the buyers - There are several decisions, which hold that when the Chartered Accountant certifies that the duty burden has not been passed on to the buyers, the same has to be accepted.
There is no unjust enrichment in the present case - appeal dismissed - decided against Revenue.
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2007 (4) TMI 547
... ...
... ... ..... that the valuation has to be done as per the February, 2003 Circular which prescribes that the cost of production has to be determined in accordance with CAS4, and this method has not been followed by the Commissioner in the present impugned order, and further, in view of the fact that the Apex Court decision in Cadbury India Ltd. cited supra was not before the Commissioner (the decision of the Apex Court came subsequent to the impugned order), we are of the view that the interests of justice require that the case be remitted to the jurisdictional Commissioner for fresh decision in the light of the February, 2003 Circular and the Apex Court decision cited supra. We order accordingly. All other issues except plea for valuation under Section 4(i)(a) of the Central Excise Act are left open for the assessee to agitate in de novo proceedings. 7. emsp In the result, the impugned order is set aside and the appeal is allowed by way of remand in the above terms. (Pronounced in Court)
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