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Central Excise - Case Laws
Showing 101 to 120 of 219 Records
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2007 (6) TMI 364 - CESTAT, MUMBAI
Cenvat/Modvat - Capital goods - Judicial discipline - Binding precedent - Interpretation of statute
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2007 (6) TMI 363 - CESTAT, CHENNAI
Cenvat/Modvat ... ... ... ... ..... cribed under Rule 19(2) of the Central Excise Rules, 2002 r/w Notification No. 43/2001-C.E. (N.T.), dated 26-6-2001. The substantive condition was that the input should be used in the manufacture of final product to be exported. When the assessee found it difficult to satisfy this condition, they chose to pay the duty and cess leviable on the input but for the exemption under Rule 19(2) r/w the Notification. Upon such payment of duty and cess on the input, the assessee became entitled to deal with the input in the ordinary course of business, unfettered by anything contained in the above rule or notification. Thus, they became entitled to take Cenvat credit of the duty and cess paid on the input, which they did lawfully. The demand of equivalent amount from the assessee by the lower authorities is untenable in law and consequently the penalty also is unwarranted. In the result, the impugned order is set aside and this appeal is allowed. (Dictated and pronounced in open Court)
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2007 (6) TMI 362 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... ound that the items in question, namely, networking systems, general user personal computers, monitors, printer, etc., are not directly used in connection with the manufacturing activity, for the reason that the language of the notification, prima facie, lends itself to a view that even items which are used in connection with the production or packaging or job work are covered by the notification and particularly when the notification itself lists out even equipments such as PABX, Fax machine, laptops, etc. as seen at serial No. 6 of the table to the notification, which items cannot be said to be directly used for the purpose of production, packaging or job work for export. 2. emsp We, therefore, waive pre-deposit of the duty and penalty and stay recovery thereof pending the appeal. 3. emsp The prayer for stay of operation of the impugned order is rejected as no ground justifying exercise of our inherent powers for stay has been made out by the applicants. (Dictated in Court)
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2007 (6) TMI 361 - CESTAT, MUMBAI
Penalty - Composite penalty - Imposition of - Cenvat/Modvat credit - Wrong availment of credit - Held that: - the adjudicating authority, it seems, mis-read the provisions of Section 11AC. If the appellant has committed any error prior to 28-9-96, then no penalty is imposable on the appellants under Section 11AC, as the penal provisions under Section 11AC came into statute from that date. As regards the penalty imposable the appellants subsequent to 28-9-96, I find that the adjudicating authority has not given any bifurcation of the amount of demandable subsequent to 28-9-96. Further, I find that the adjudicating authority has imposed equivalent amount of penalty under Section 11AC and Rule 173Q without showing as to how much amount is imposable as penalty under Section 11AC and how much amount is imposable under Section 173Q(sic) (Rule 173Q). In the absence of any such bifurcation, it is settled law that combined penalty is not imposable on the appellants and the same is liable to be set aside. In the absence of exact amount of penalty attributable against the relevant provisions, the penalty imposed on the appellant is liable to be set aside and I do so - appeal allowed in part.
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2007 (6) TMI 360 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Import for export production ... ... ... ... ..... ng placed on the judgment of the Hon rsquo ble Supreme Court in the case of the Metal Box India Ltd. v. CCE, Mumbai - 2003 (155) E.L.T. 13 (S.C.). 5. emsp We find no merit in the appellant rsquo s contentions. The appellant had obtained the machinery in question for export production and had bound itself to pay custom duty in the event of that condition being not satisfied. There is nothing in the judgment which makes a difference to the appellant rsquo s liability for payment of customs duty. Section 72(d) contemplates due accounting of warehoused goods, and sale in domestic market without payment of duty is no due accounting for. Industrial units under reference before BIFR enjoy no special right to dispose of warehoused goods without payment of duty. 6. emsp The duty demand is clearly sustainable and the appellant is, therefore, directed to deposit that amount within a period of six weeks from today and report compliance on 2-8-2007. (Dictated and pronounced in open Court)
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2007 (6) TMI 359 - CESTAT, AHMEDABAD
Demand - Shortage of inputs - Held that: - there is no evidence on record corroborating the Revenue’s stand that the modvatable input has either been utilized by them in clandestine manufacture of the final product or the same has been cleared from the factory. The Revenue is relying upon the statement of director, which is only to the fact that the visiting officers have found shortage in the stock and nowhere admits that the said scrap stands cleared by them after availing the Modvat credit - Commissioner (Appeals) has rightly concluded that the shortages are psudo and not real - appeal dismissed - decided against Revenue.
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2007 (6) TMI 358 - CESTAT, NEW DELHI
Cenvat/Modvat - Waste, on line waste ... ... ... ... ..... o far as Settlement Commission is concerned, are pari materia to the provisions contained in the Central Excise Act. rsquo 4. emsp The appellant rsquo s case remains covered by the judgment of the Hon rsquo ble High Court. In the case of Asahi India Safety-Glass Limited, the Hon rsquo ble High Court noted that process of manufacture commences with the loading of float glass sheet on the float table and any waste occurring thereafter is waste in the process of manufacture. In the present case, the Aluminium foil was issued for manufacture and was wasted/rejected during the process of manufacture. Therefore, the situation in which waste occurred are same and credit is not to be reversed. 5. emsp In view of what is stated above, appeal succeeds in relation to the aforesaid demand of Rs. 49,480/- (Rupees Forty nine thousand four hundred eighty). Since, appeal in regard to credit is allowed, penalty and claim for interest are also set aside. (Dictated and pronounced in open court)
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2007 (6) TMI 355 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Demand - Limitation ... ... ... ... ..... ore they were entitled to avail CENVAT credit thereon. It also appears that there was no time limit- for such availment of credit during the material period. However, in respect of scrap imported and cleared under 38 Bills of Entry, the appellants are not possessed of any end-use certificates. Learned Counsel has not been able to furnish a break-up of the amount of CENVAT credit found to have been irregularly availed by them. In the circumstances, we are inclined to insist on pre-deposit of 50 CENVAT credit disallowed to the appellants. In the event of due compliance, there will be waiver of pre-deposit and stay of recovery in respect of the balance amount of duty demanded as well as the penalties imposed on the appellants. The appellants have not pleaded financial hardships. 4. emsp In the result, we direct the company to pre-deposit Rs. 80,00,000/- (Rupees eighty lakhs only) within four weeks and report compliance on 7th August, 2007. (Dictated and pronounced in open Court)
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2007 (6) TMI 352 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Refund of Cenvat credit ... ... ... ... ..... ression lsquo cause to supply rsquo occurring in sub-rule (3) of Rule 12B appears to be covering a factual situation of the kind noted in the present case. It was the practice of M/s. CFL and their sister units including the appellants that the former was to procure the raw material, allocate the same to the latter depending on the quota, retain the balance quantity with them for job work and clear the garments resulting from the job work, for home consumption or for export as required by the other units. In this regime, perhaps, the provisions of sub-rules (3) and (4) of Rule 12B require a harmonious construction. In this view of the matter, prima facie, it appears to us that the appellants were eligible for the CENVAT credit in question and consequently they had a legitimate claim for refund. Accordingly, there will be waiver of pre-deposit and stay of recovery in respect of the amount of credit denied and the equal amount of penalty. (Dictated and pronounced in open Court)
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2007 (6) TMI 351 - CESTAT, AHMEDABAD
Demand - Cenvat/Modvat credit - Confiscation of excess goods - Evidence - Confessional statement - fake documents - Held that: - In view of the majority order, the confirmation of demand of duty on M/s. Tejal Dyestuff Industries, excepting the demand of ₹ 55,163/- is set aside, confirmation of interest and imposition of penalty upon the appellants are set aside and confiscation of the goods is also set aside - appeal allowed.
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2007 (6) TMI 349 - CESTAT, CHENNAI
Adjudication - Natural justice ... ... ... ... ..... ted by the assessee). The authority was, virtually, denying natural justice to the assessee to the said extent. This vice of the adjudication proceedings should have been taken note of by the first appellate authority, but this did not happen in this case. We are inclined to remand this case to the original authority for the ends of justice, having regard to the fact that, in the view taken by us, the lower appellate authority would have had no option but to remand the case. Accordingly, the orders of the lower authorities are set aside and the case is remitted to the original authority for fresh adjudication in accordance with law and the principles of natural justice. It is made clear that the assessee shall be given an effective opportunity to cross-examine the 13 witnesses cited by them. Of course, a reasonable opportunity of being heard shall also be made available to the appellants. Both the appeals stand allowed by way of remand. (Dictated and pronounced in open Court)
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2007 (6) TMI 348 - CESTAT, NEW DELHI
Cement - Exemption - Notification No. 56/2002-C.E - denial on the ground that the requirement laid down in the N/N. 56/2002-C.E. dated 14-11-2002 in Para 3(a) to the effect that new industrial units, should have commenced their commercial production on or after 14-6-2002, was not satisfied - Held that: - the appellant started commercial production/sale of PPC cement only w.e.f. 15-6-2002. There is absolutely no ground to doubt the genuineness of the said certificate as well as the corrigendum, which had been issued by an independent authority in favor of the appellant - the earlier date of production 10-2-2002 mentioned in the certificate of permanent registration was not the date of commencement of commercial production and that some trial production may have been done at that time - appeal allowed.
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2007 (6) TMI 341 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... that the procedure to be followed under HSN Explanatory notes, was not followed and the opinion given by the IIT is in favour of the importer. In view of the above said orders, it is a prima facie fit case for waiver of duty and penalty. Therefore, pre-deposit of duty and penalty is waived for hearing the appeal. The stay petition is allowed unconditionally. 38. emsp The registry is directed to list the Appeal No. 534/06 and No. 535/2006 alongwith this appeal in the week starting from 26th March, 2007. The appeal papers be placed before the regular Bench. (Order dictated and pronounced in the open Court) Sd/- (S.S. Kang) Vice-President FINAL STAY ORDER As held by the majority decision the stay application filed by the applicant for waiver of pre-deposit of the amount of duty and penalty is allowed and recovery thereof stayed till the disposal of appeal. Registry is directed to list the appeal at the earliest. Sd/- (Dr. T.V. Sairam) Member (T) Sd/- (M.V. Ravindran) Member (J)
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2007 (6) TMI 340 - CESTAT, BANGALORE
SSI Exemption vis-a-vis Cenvat credit ... ... ... ... ..... ave completely been paid through Cenvat credit. It is very clear that the appellants are choosing to withdraw the option in the middle thereby violating the above mentioned condition of the Notification. Why do they do it? A reading of the Order-in-Original reveals that the appellants are resorting to this practice so that the buyers can take more Cenvat credit. Had the appellants stuck to the conditions of the Notification and paid duty only at 9.6 , the buyers would have taken only that much credit. The appellants cannot violate the condition of the Notification to help the buyer. In any case, we cannot say that there is no Revenue loss. To the extent that the buyer takes more credit, the Government is put to loss. Hence, Revenue rsquo s proceedings for recovery of the irregularly availed Cenvat credit is in order. We do not find any merit in this appeal. Therefore, the same is rejected. (Operative portion of this Order was pronounced in open Court on conclusion of hearing)
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2007 (6) TMI 338 - CESTAT, MUMBAI
Appeal - Merger - Doctrine of Merger - Res judicata ... ... ... ... ..... some meaning in applying either the principle of estopel or res judicata so that the matter cannot be re-agitated once the issue decided in between the same parties finally. As the respondent assessee rsquo s appeal was decided ex parte, the department has been denied an opportunity to raise the issue for enhancing of penalty. Even otherwise, in the appeal filed by the department they have their right to put forth their contentions and the right of appeal cannot be derogated in the aforesaid manner. It is altogether different whether the department would make out a case for enhancing of the penalty or not but right of appeal cannot be denied on the aforesaid ground as observed by the ld. Commissioner. Therefore, it is felt expedient to remand this matter back to the Commissioner (Appeals) for fresh disposal to hear the appellants and as well as the respondent assessee and to decide the matter fresh. In the result appeal is allowed in remand in above terms. (Dictated in Court)
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2007 (6) TMI 337 - CESTAT, AHMEDABAD
Refund - Cash refund ... ... ... ... ..... it was submitted by the Ld. DR that no show cause notice has been issued for recovery of the wrongly granted refund. If that be the case, the question of any benefit out of Commissioner (Appeals) rsquo s order is not there for the Department. 4.2. emsp Further, Ld. Authorised Representative of the appellant submits that as of now, if credit is given to them, they will be able to utilize as they are paying duty now. In other words, if the refund is ordered to be recovered, they will be eligible for equal amount of credit which they will be able to utilise. This will be a revenue neutral exercise. Further, as already mentioned, the Department has not issued any show cause notice proposing recovery of erroneously granted refund. Therefore, the outcome of this appeal will be of no consequence to the Department. 5. emsp In the light of the above, the appeal by the party is allowed holding that the refund already paid to them can not be recovered. (Dictated and Pronounced in Court)
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2007 (6) TMI 335 - CESTAT, KOLKATA
Production capacity based duty - Annual capacity of production - Strictures against Commissioner
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2007 (6) TMI 331 - CESTAT, AHMEDABAD
Penalty - Clandestine removal, proof - Held that: - There is no direct evidence of clandestine removal by way of evidence like shortage of any finished goods, private records indicating production/clearance, transport document or admission by the buyers etc. At the same time, the clandestine removal stands admitted by the partner, and the duty involved stands paid - Still, this is not a case of clandestine removal proved by other corroborative evidence - appeal dismissed - decided against Revenue.
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2007 (6) TMI 330 - CESTAT, KOLKATA
Stay/Dispensation of pre-deposit ... ... ... ... ..... ication 21/02, dated 1-3-2002 while clearing the product to M/s. IOC. The impugned demand has been confirmed against the appellants under Section 11D on the ground that M/s. IOC has shown 100 duty collected from their customer. It is pleaded on behalf of the appellants that M/s. IOC has shown the duty as 100 by mistake and in any case, selling price inclusive of duty was fixed as per the Central Government Directive. We find that Section 11D relates to a person who is required to pay duty and if such person collects extra amount as duty, he is required to pay the extra amount to the Government. Prima facie, in this case, the appellants are required to pay duty and they have collected no extra amount from their customer, M/s. IOC. Hence, we are of the view that the appellants have made out a case for waiver of the pre-deposit. Accordingly, we waive the requirement of predeposit during pendency of the appeal. Stay petition is allowed. (Dictated and pronounced in the open Court)
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2007 (6) TMI 328 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Interest, relevant date ... ... ... ... ..... y interest on any amount payable to Central Government, consequent to order for final assessment under sub rule (3), at the rate specified by the Central Government by notification issued under Section 11 AA of Section 11AB of the Act from the first day of the month succeeding the month for which such amount is determined, till the date of payment thereof rdquo . From the above, it is apparent that the assessee has to pay interest for the period between the payment of provisional duty and the payment of differential duty on finalisation of provisional assessment. Though the liability to amounts quantified and demanded deserves to be examined, the amounts yet to be quantified are prima facie liable to be paid by the assessee. The learned Counsel offers to pay up the amounts quantified in a period of four weeks. The appellant may do so. There will be stay of recovery of the amounts not quantified till the final disposal of the appeal. (Pronounced and dictated in the open Court)
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