|
Advanced Search Options
Central Excise - Case Laws
Showing 21 to 40 of 219 Records
-
2007 (6) TMI 479 - CESTAT, AHMEDABAD
Confiscation - Excess goods ... ... ... ... ..... sufficient to show the mala fide intention of appellant to evade the Central Excise duty on the said excess found goods. However, mere fact that the goods were lying in the finished room and packed and ready for despatch condition by itself, can not lead to inevitable conclusion that the same were meant for clandestine removal, especially when the quantity of such goods is not more than the appellant s capacity to process in one day. As such, I extend the benefit of doubt to the appellant and set aside the confiscation of the excess found seized goods. 7. emsp As regards the demand of duty, the same is upheld, as not contested by the appellant. However, keeping in view, the facts and circumstances of the case, personal penalty under Section 11AC is reduced to Rs. 1 lakh and separate penalty of Rs. 25,000/- imposed under Rule 25(1) is set aside. Confirmation of interest, as per law is upheld. 8. emsp The appeal is disposed off in above terms. (Pronounced in Court on 13-6-2007)
-
2007 (6) TMI 477 - CESTAT, AHMEDABAD
Clandestine removal - Shortage of final product and cenvatted raw material - Held that: - apart from shortages detected at the time of visit of the officers, which in any case are on the lower side, there is no evidence on record to establish clandestine manufacture and removal of goods - there is, virtually, no evidence on record to establish the fact of clandestine removal, onus for which lies upon the Revenue - appeal allowed - decided in favor of appellant.
-
2007 (6) TMI 475 - CESTAT, AHMEDABAD
Payment of duty - Default ... ... ... ... ..... by the Additional Commissioner on the ground that since there was no default in payment of duty by loan licencees in earlier proceedings, there was no requirement to pay the duty from PLA by loan licencees during the period 1-6-02 to 31-8-02. 3. emsp The said order was appealed against by the Revenue and Commissioner (Appeals) reversed the same and directed the appellant to pay duty in respect of loan licencees from PLA. 4. emsp After hearing both sides, I find that order of Commissioner (Appeals) is not in accordance with the law and inasmuch as admittedly two separate accounts were being maintained by appellant and there was no default in payment of duty on behalf of loan licencees. The appellant has already suffered for the default in payment of duty in its own account. As such, default can not be extended to duty payment on behalf of loan licencees. 5. emsp Accordingly, I set aside the impugned order and restore the order of Additional Commissioner. (Pronounced in Court)
-
2007 (6) TMI 474 - CESTAT, AHMEDABAD
Penalty - Personal penalty on proprietor ... ... ... ... ..... processor and only a trading company, no duty can be confirmed against him and no penalty can be imposed. Accordingly, he allowed the appeal of M/s. Karan Textiles, but upheld the penalty upon the proprietor in terms of Rule 209A. 2. emsp Learned advocate appearing for the appellant submits that facts and circumstances of the case, upholding penalty upon the proprietor of their unit was neither justified nor warranted. He submits that there is nothing on record to show that the manufacturer of the goods have not paid the duty and the appellant was aware of the same. 3. emsp After hearing the learned DR and considering the facts and circumstances of the case, I am of the view that appellate authority should have set aside the penalty upon the proprietor also for the same reason and on the same ground on which the penalty on the trading unit was set aside. As such, I set aside the impugned order and allow the appeal with consequential relief. (Dictated and Pronounced in Court)
-
2007 (6) TMI 473 - CESTAT, AHMEDABAD
Stay/Dispensation of pre-deposit - Captive consumption - Interpretation of Notification - Precedent - Judicial discipline
-
2007 (6) TMI 472 - CESTAT, AHMEDABAD
Smuggled goods - Proof ... ... ... ... ..... in unit No. 2 under Section 111(d) of the Customs Act, 1962, option to redeem on payment of redemption fine, demand of customs duty under Section 28 ibid, imposition of penalty on the unit as well as S/Shri Maniram Ramdas Chajaru and Murarilal Ladhuram Shroff under the provisions of Section 112(b) of Customs Act cannot be upheld. rdquo 2. emsp The Revenue in their memo of appeal have again put forth the same grounds that though the bill of entry and invoice was produced by the appellant, but no transport documents showing the receipt of the goods was produced. There is nothing in the Revenue rsquo s appeal to assail or challenge the correctness of the documents produced by the respondent. 3. emsp Producing transport document will not automatically go to show that the goods are smuggled or not legally procured by the respondent. As such, I find no infirmity in the view of the appellate authority. The appeal filed by the Revenue is, accordingly, rejected. (Pronounced in Court)
-
2007 (6) TMI 471 - CESTAT, CHENNAI
Exemption - rectified spirit - Captive consumption - Cenvat/Modvat credit - Held that: - similar issue decided in the case of GODAVARI SUGAR MILLS LTD. Versus COMMISSIONER OF C. EX., BELGAUM [2006 (11) TMI 497 - CESTAT, BANGALORE], where it was held that where the final product is Ethyl Alcohol and other spirits denatured of any strength, it is sufficient if the cenvat credit attributable to inputs in the exempted product is reversed or paid - appeal allowed.
-
2007 (6) TMI 470 - CESTAT, AHMEDABAD
Appeal to Commissioner (Appeals) - Maintainability of ... ... ... ... ..... he order of fixing APC by way of filing a writ petition. The said writ petition was rejected by Hon rsquo ble High Court of Gujarat vide order dated 27-1-2000, directing the respondent to file an appeal before Commissioner (Appeals). It was in this background, the Commissioner (Appeals) entertained the appeal filed against the Commissioner rsquo s order. Inasmuch as the appeal was entertained by Commissioner (Appeals), in terms of Hon rsquo ble High Court of Gujarat, we find no infirmity in the impugned order. 3. emsp The appeal filed by Revenue is, accordingly, rejected. (Pronounced in Court)
-
2007 (6) TMI 469 - CESTAT, KOLKATA
Exemption - Notification No. 152/87-C.E ... ... ... ... ..... demonstrate the manner how I marketability was proved by the Department to satisfy the twin test of excise jurisprudence. In the absence of discharge of onus, the Appellant cannot be brought to the ambit of law following the Supreme Court rsquo s judgment cited by the learned Counsel for the Appellant. Secondly, so far as the applicability of Notification is concerned, answer to that question becomes redundant in view of the decision of excisability which is answered affirmatively in favour of the Appellant. 7. emsp It was also submitted by the learned Counsel that the duty was already deposited under protest, which is vividly clear from the finding part of the impugned Order where it has been mentioned that the amount so deposited was not liable to be deposited. Accordingly, consequential relief should be admissible to the Appellant. In absence of any material to the contrary, the Appellant is also entitled to consequential relief. (Pronounced and dictated in the open court)
-
2007 (6) TMI 468 - CESTAT, AHMEDABAD
Demand - Limitation - Revenue neutrality ... ... ... ... ..... ot advanced any evidence to upset the finding of non-flow of consideration to the respondent. On the contrary, the Revenue has submitted that the question of flowing of additional commercial consideration to the consigner of the goods does not arise inasmuch as the clearance was to the group/associate companies on stock transfer basis. 3. emsp After appreciating the submissions, we do not find any infirmity in the view of Commissioner (Appeals). The demand has also been made for the period of April, 1995 to October, 1999 by issuing show cause notice on 29-8-2000. The job workers were availing of Modvat credit duty paid on the goods sent to them and as such the entire situation was revenue neutral. It could not be said that there was any suppression on the part of the respondent with an intention to evade payment of duty. 4. emsp If view of the foregoing discussions, we do not find any merits in the Revenue rsquo s appeal and reject the same. (Dictated and pronounced in Court)
-
2007 (6) TMI 465 - CESTAT, BANGALORE
Demand - Clandestine removal ... ... ... ... ..... hat the appellants had filed FIR with regard to the theft of cigarettes and the same has been intimated to the Department. In view of this position, the question of alleging clandestine removal does not arise. Further plea is that the factory was under physical control of the Department and in the appellant rsquo s own case, this view had been expressed by this Bench that the goods which were removed for testing purpose cannot be considered as clandestinely removed. The learned Counsel also pointed out the Mahazar drawn by the Department wherein it was clearly recorded that the stolen cigarettes which were subsequently seized were of defective cigarettes. We are of the considered opinion that the Department has not discharged their onus with regard to the clandestine removal of the goods without payment of duty. The impugned order is not legal and proper and the same is set aside. The appeal is allowed with consequential relief if any. (Pronounced and dictated the open Court)
-
2007 (6) TMI 460 - CESTAT, MUMBAI
Cenvat/Modvat - Demand - Forfeiture of instalment facility ... ... ... ... ..... e available to the assessees for utilization and the payment of the amount through PLA is confirmed. As regards penalty I see substance in the DR rsquo s submission that the provisions of Rule 25(a) of the Central Excise Rules, 2001 are attracted for the reason that the assessee had removed excisable goods without payment out of account current which is a removal in contravention of the law and the contention of the assessee that they have already suffered by forfeiture of the facility of payment of duty on fortnightly basis is not sufficient to hold that no penalty is warranted, particularly when the debarment for availment of the facility of payment of duty on fortnightly basis was on account of prior contravention by payment out of Cenvat Credit account instead of account current. However in the facts and circumstances of the case penalty is reduced to Rs. 25,000/- (Rupees twenty five thousand only). 3. emsp The appeal is thus partly allowed as above. (Pronounced in Court)
-
2007 (6) TMI 458 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Penalty ... ... ... ... ..... Bench sitting single, which is to the effect that any penalty under Rule 209A of the Central Excise Rules, 1944 (equivalent to Rule 26 ibid) was not imposable on a partnership concern but imposable only on a natural person. Ld. SDR has cited Madhya Pradesh High Court rsquo s judgment dated 27-8-1975 in Ramhet and Anr. v. Mandir Shri Laxminarain and Ors., AIR (1976) MP 216, wherein a company was also held to be covered by the term ldquo person rdquo . 2. emsp After considering the submissions, we note that the question before the Hon rsquo ble High Court was one arising under a Madhya Pradesh State statute, whereas, in the cases cited by ld. counsel, the question related to imposability or otherwise of penalty under Central Excise Rules. The appellants have made out prima facie case against the penalties imposed on them under Rule 26 ibid. Accordingly, there will be waiver of predeposit and stay of recovery in respect of those penalties. (Dictated and pronounced in open Court)
-
2007 (6) TMI 456 - CESTAT, BANGALORE
Refund - Unjust enrichment ... ... ... ... ..... 79) E.L.T. 494 (Tri.-Bang.) (f) emsp Asian Paints (I) Ltd. v. Commissioner of C. Excise, Mumbai-III 2006 (199) E.L.T. 873 (Tri.-Mumbai) 4. emsp We have carefully considered the submissions made by both the sides. The assessee has shown that the price of the final products has not been influenced on the intermediate products. They had admitted before the Commissioner (Appeals) that the burden of duty has not been passed on to the consumers. The order passed by the Commissioner (Appeals) is legal and proper in the light of the judgments relied on by the learned Consultant. The judgment of the Apex Court rendered in the case of Union of India v. Solar Pesticide Pvt. Ltd. (supra) referred to by the learned SDR is distinguishable as in that case also the Apex Court has clearly given an opportunity to the assessee to discharge their burden which has been done in the present case. There is no merit in the appeals and the same are rejected. (Pronounced and dictated in the open Court)
-
2007 (6) TMI 455 - CESTAT, BANGALORE
Demand - EOU, 100% EOU - DTA clearance ... ... ... ... ..... ated 18-5-2001. He refers to the judgment of this Bench wherein the shrimps removed were held to be not dutiable. He submits that the impugned order with regard to the confirmation of demand of duty is not contested by them. In so far as the short issue raised by the Department with regard to setting aside the demand on damaged shrimps is concerned, he submits that there is no infirmity in the order. 4. emsp We have carefully considered the matter. With regard to setting aside the demand on damaged shrimps, the Revenue in the lsquo Grounds of the Appeal rsquo does not deny the facts that the shrimps are not fit for human consumption after its clearance. We find that the order passed by the Commissioner is a detailed one and that the order on the point of the shrimps cleared which were not fit for human consumption and dropping the demand on a small portion is just and proper. There is no merit in the appeal and the same is rejected. (Pronounced and dictated in the open court)
-
2007 (6) TMI 454 - CESTAT, BANGALORE
Appeal before Appellate Tribunal - Limitation - Service of order - Demand - EOU, 100% EOU ... ... ... ... ..... On a careful consideration of the matter we have noticed that the Development Commissioner had permitted the appellants to switch over from E.O.U. Scheme to E.P.C.G. Scheme. Now they desire to function under the new scheme. Therefore the impugned order has become infructuous. The matter is remitted back to the Original Authority to permit the appellants for functioning under the E.P.C.G. Scheme in terms of Para 6.18 (a) and (d) of Foreign Trade Policy 2004-09 subject to the conditions laid down therein. In terms of the Development Commissioners order, they should function under the jurisdictional Commissioner of Customs and Central Excise. For that reason, the matter is remitted back to the Original Authority for permitting the appellants for function under E.P.C.G. Scheme in terms of the conditions stipulated in the Foreign Trade Policy 2004-09. The stay application and the appeal are allowed by way of remand. Ordered accordingly. (Pronounced and dictated in the open court)
-
2007 (6) TMI 451 - CESTAT, CHENNAI
Cenvat/Modvat credit - Capital goods - denial of credit on the ground that the electricity generated by the co-generation plant was not wholly consumed within the sugar factory - Held that: - Modvat credit on capital goods could not be denied to an assessee under Rule 57Q on the ground of non-fulfilment of any condition set out under sub-rule (2) of Rule 57R. In other words, the availment of capital goods credit under Rule 57Q by the appellants on the components used in the manufacture of co-generation plant or for maintenance of the plant is not liable to be questioned on the ground that the surplus electricity generated was released out of the factory to TNEB grid - appeal allowed.
-
2007 (6) TMI 450 - CESTAT, MUMBAI
Refund of pre-deposit - Amount paid pursuant to Court order - unjust enrichment - whether amounts paid by way of pre-deposit (in this case the amount was paid pursuant to court order) attract the doctrine of unjust enrichment? - Held that: - the issue is no more res-integra and is settled by the decision in the case of SAHAKARI KHAND UDYOG MANDAL LTD. Versus COMMISSIONER OF C. EX. & CUS. [2005 (3) TMI 116 - SUPREME COURT OF INDIA], where it was held that Before claiming a relief of refund, it is necessary for the petitioner/appellant to show that he has paid the amount for which relief is sought, he has not passed on the burden on consumers and if such relief is not granted, he would suffer loss.
The present claim for refund is also required to be tested on the anvil of unjust enrichment. Since the claim requires to be examined from this angle, I set aside the impugned order and remand the case to the Commissioner (Appeals) for examination - appeal allowed by way of remand.
-
2007 (6) TMI 449 - CESTAT, MUMBAI
Cenvat/Modvat credit - Capital goods - old and used capital goods - Rule 3 of Cenvat Credit Rules - Held that: - credit remains allowed
-
2007 (6) TMI 448 - CESTAT, BANGALORE
Refund claim - Locus standi for filing claim ... ... ... ... ..... that a purchaser does not pay Central Excise duty directly to the Department. Yet, when he has borne the burden of Excise duty which is not actually payable, law provides that he can also claim refund from the Department. However, in the present case, the person claiming refund is the manufacturer who cleared the goods on the strength of CT-3 Certificate issued by the Department and it is also on record that he had borne the burden of duty. In these circumstances, it is not correct to reject the refund claim on grounds of locus standi. We do not want to discuss the other issues. In view of our findings, we set aside the impugned order and remand the matter to the original authority to examine the refund claim on merits and pass an appropriate order within a period of four months from the date of receipts of this order. We want to reiterate that excepting the question of locus standi which we have decided, all other issues are kept open. (Pronounced in open Court on 26-6-2007)
........
|
