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Central Excise - Case Laws
Showing 21 to 40 of 222 Records
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2007 (7) TMI 562
Rectification of mistake - Error apparent on record ... ... ... ... ..... e following decisions in the cases of 1. M/s. Chaya Industries v. CCE, Cochin 2003 (156) E.L.T. 613 (Tri.-Bang.) 2. M/s. Apollo Tyres v. CCE, Pune 2001 (134) E.L.T. 679 (Tr.-Delhi) 3. M/s. Delphi Automotive Systems P. Ltd. v. CCE, Noida 2004 (172) E.L.T. 257 (Tri. Delhi) . 3. emsp The above decisions show that once penalty is not leviable, the interest amount is also not leviable during the relevant period when both the Sections were equal prior to 2001 and in such circumstances ROM applications can be allowed. Basing on the above said decisions, we are inclined to allow the ROM application finding that there is a mistake crept in the impugned order in not dealing with the interest amount, which was confirmed by the lower appellate authority. Accordingly, the interest amount payable on the confirmed demand is hereby deleted. The applicant is not liable to pay the interest amount as the penalty amount was already set aside. Order accordingly. (Dictated and Pronounced in Court)
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2007 (7) TMI 561
... ...
... ... ..... cost. He relied on the decisions of the Tribunal in case of Amco Batteries Ltd. v. CCE, Bangalore in the case of 2007 (207) E.L.T. 612 (Tri.-Bang.) and Featherlite Products (P) Ltd. v. CCE, Bangalore - 2005 (191) E.L.T. 487 (Tri.-Bang.), laying down that the advertisement charges borne by the dealers cannot be included in the assessable value. 5. emsp The learned SDR reiterates the findings of Commissioner (Appeals). 6. emsp We have carefully considered the submissions by both sides. We find that the expenses incurred initially by the appellant stands recovered from the distributors. No evidence has been shown that the promotional activities were taken at the instance of and for the exclusive benefit of the appellant. We agree with the contention of the appellant that the advertisement sales promotion expenses incurred by dealers themselves cannot be a part of the assessable value. 7. emsp The appeal is allowed and the stay petition is also disposed off. (Pronounced in Court)
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2007 (7) TMI 560
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... esale packages. It is admitted position that no MRP has to be affixed on the said barrels. If affixation of MRP was mandatory under the concerned rules, action would have been taken against them by the authorities in terms of Standards of Weights and Measures Act. Section 4A is to the effect that the same will be applicable in respect of specified goods in relation to which it is required under the provisions of Standards of Weights and Measures Act or the rules made was under to declare on the packages thereof the retail sale price of such goods. Admittedly, no such declaration has been made on the goods in question and no such requirement is there, as clarified by the Controller of Legal Metrology. In view of this, we find that the appellant has a good prima facie case in his favour and we allow the stay petition unconditionally. We order accordingly. Inasmuch as, a short issue is involved, we fix the appeal for final disposal on 6-8-2007. (Dictated and pronounced in Court)
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2007 (7) TMI 559
Rectification of mistake - Error apparent on face of record ... ... ... ... ..... as there was no specific entry in Central Excise Tariff classifying it in heading 84.17. 3. emsp However, we find that the said plea relates to the merit of the case and cannot be said to be covered by the scope of the expression rectification of mistake appearing in Section 35C of the Act. It is well settled that only those mistakes which are apparent on the face of record can be rectified and any issue which requires long drawn process of argument by both the sides to arrive at a conclusion, can not be said to be result of any mistake. As such, we find no merit in the applications and reject the same. (Dictated and Pronounced in Court)
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2007 (7) TMI 558
Recovery of sums due to Government ... ... ... ... ..... Excise Act. We are convinced that the matter is still pending with High Power Committee for clearance of COD. Further, we observe that in the light of Hon rsquo ble Supreme Court rsquo s judgment dated 7-1-94 in the case of ONGC 1944 (70) E.L.T. 45 (S.C.) no coercive action shall be taken against the unit as proceedings are deemed to be under challenge or the order is suspended pending consideration of the clearance of COD by High Power Committee. In the light of these guidelines, which the department has knowledge, it is to be held that the recovery of confirmed demand is unwarranted. In the above circumstances, we hereby grant interim suspension of the order impugned. The Commissioner concerned is hereby directed not to initiate any action or take steps to recover the demand till the COD application is decided by the High Power Committee or until further orders in this regard passed by the Tribunal. The application is allowed accordingly. (Dictated and Pronounced in Court)
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2007 (7) TMI 557
Rectification of mistake ... ... ... ... ..... allenge before the Supreme Court and the leave has been granted. Learned Advocate for the appellants submits that mere pendency of the case in the Supreme Court is not a criteriron unless stay is granted or finally dispensed of. On the date of passing the impugned order, the proposition laid down by the High Court was understood in proper prospective or not. This alone to be seen in this application. 5. emsp After hearing both sides at length on this point, I am convinced that proposition laid down by the Punjab and Haryana High Court has been misconstrued and consequently, the appeal was dismissed. This has to be set right by deleting the last para and substituting as follows - ldquo In view of the above High Court Judgment, Rule 5 of ACP Rules is not applicable and the appellant is entitled to pay on the reduced capacity. rdquo Therefore, the impugned order is set aside and the appeal is allowed. Accordingly, ROM is allowed. rdquo (Dictated and pronounced in the open Court)
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2007 (7) TMI 554
Demand - Limitation - Suppression or mis-statement ... ... ... ... ..... g a container as in unassembled form it is required that the same is closed on three sides and open only at one end. When they have introduced new item, they have not furnished the relevant detai1s. 6. emsp We have carefully considered the submissions made from both sides. We find that the description adopted by the buyers of the product and one declared by the appellant in the classification list are one and the same. They have given a broad description. In addition, the Chapter heading refers to containers not only in assembled condition but also in unassembled condition. Under these circumstances, we do not find any material to support the allegation of suppression or mis-statement on the part of the appellant. Therefore, invoking extended time is not sustainable. Since we are allowing the appeals on the time bar aspect, we do not intend to discuss the merits of the case. 7. emsp The appeals are allowed with consequential relief. (Dictated and pronounced in the open Court)
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2007 (7) TMI 553
Confiscation and penalty ... ... ... ... ..... n for confiscation of goods and imposition of penalty. The deposition of the authorized person and executive Director that there might have been calculation mistake, cannot be brushed aside. 8. emsp In short illicit procurement of raw material and intention for non accountal of the seized goods on the part of the appellant unit is not proved. Further, as discussed above methodology adopted to come to conclusion of excess stock of raw material was not proper. In the circumstances, the benefit of doubt goes to appellants. rdquo 5. emsp As rightly pointed out by the Commissioner (Appeals), as a 100 EOU they were entitled to receive duty free raw material therefore, the explanation that excess found was due to some accounting error appears reasonable. 6. emsp No valid grounds have been adduced to interfere with the findings and reasonings given by the Commissioner (Appeals). 7. emsp The appeal by the Department is, therefore, dismissed. (Dictated and pronounced in the open Court)
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2007 (7) TMI 552
Redemption fine - Quantum of ... ... ... ... ..... t part of the State of Gujarat, which was outside the jurisdiction of Commissioner of Customs, Jamnagar and Commissioner, Customs, Kandla. The appellants have not denied that Surat territorially falls within the jurisdiction of Commissioner, Customs, Ahmedabad. 6. emsp It is seen that the appellant have not denied that seized goods were removed from the warehouse in violation of the condition of Notification No. 53/97-Cus., dt. 3-6-97. As such, in view of the above discussion, I hold that the same are liable for confiscation inasmuch as the same were seized at Surat. The value of seized goods is to the tune of Rs. 10 lakhs. As such, redemption fine of Rs. l lakh cannot be considered to be on the higher side, especially when the duty and penalty stand set aside on the technical ground. Accordingly, I am of the view that said redemption fine imposed by authorities below, does not call for any further reduction. Appeal is, accordingly, rejected. (Pronounced in Court on 3-7-2007)
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2007 (7) TMI 550
Order of Appellate Tribunal - Modification of order - Valuation ... ... ... ... ..... lant. 3. emsp In narration of the facts, this claim regarding multi-piece package as made by the Department has been recorded and nowhere it is mentioned that the same is accepted by the appellant. 4. emsp Therefore, as a matter of clarification, Para 4 is amended as follows ldquo 4. emsp The relevant facts in brief are that the appellants manufacturing the product namely, Fair and Lovely Ayurvedic Cosmetics Cream, Ayush Shampoo and Ayush Hair Oil, Clinic Plus Shampoo falling under Chapter No. 33 of the Schedule to the Central Excise Tariff Act, 1985 packs in the sachet/pouch containing weights/measures below 10 mg/ml duly printed with maximum retail price on each sachet/pouch and cleared in corrugated boxes which are claimed by the Department as Multipiece package as defined under Rule 2(j) of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. rdquo 5. emsp The modification petition is disposed off on the above terms. (Dictated and pronounced in Court)
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2007 (7) TMI 549
Aluminum sections, sheets etc. ... ... ... ... ..... al products. Windows, doors etc. come into existence only upon, installation along with other members. These are constructed piecemeal. Items do not come into existence as identifiable commercial products in a factory or other manufacturing premises. The appellant rsquo s contention that construction at site does not involve manufacture of excisable goods is covered by judgment of the Apex Court in the case of CCE, Nagpur v. Wainganga Sahkari S. Karkhana Ltd. and the decision of the Tribunal in the case of Suvidha Engineers (India) Ltd. v. CCE, Delhi. The duty demand in the present case is not sustainable. In the absence of duty demand, penalties are also not justified. 7. emsp The facts of the present case which have been narrated in detail by us are identical to the facts of in the case of M/s. AGV Alfab Ltd. cited supra. Following the ratio of the above decision, the appeals deserve to be allowed. 8. emsp Appeals are allowed with consequential relief. (Pronounced in Court)
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2007 (7) TMI 546
Demand - Default in fortnightly payment of duty - Held that: - the payment by Cenvat credit is as good as payment by debiting account current and that the appellants have not violated the direction for which they have been held accountable under the impugned order - appeal allowed.
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2007 (7) TMI 545
Cenvat/Modvat - Capital goods ... ... ... ... ..... er rule 57G and 57-I by Notification No. 7/99-(NT), such a lapse is required to be condoned. Hon rsquo ble CEGAT from time to time in a number of cases has held that minor procedural infractions should not come in way of substantial benefit when all substantive conditions are fulfilled. rdquo 3. emsp We find that the Tribunal in the case of Hindustan Cables Ltd. v. C.C.E., Bolpur - 2001 (137) E.L.T. 735 (Tri.-Kolkata) has held that prohibition on availment of credit before installation was introduced only from 1-1-1996 and as such, availment of credit before the said period in respect of the capital goods received but not installed cannot be denied. We find that the period in the present appeal is also prior to the said date. In any case, the credit so availed was utilized only after installation of the capital goods. As such, we find no infirmity in the order of the Commissioner (Appeals) and accordingly, reject the appeal filed by the Revenue. (Pronounced in the open Court)
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2007 (7) TMI 542
Appeal - Limitation - Delay of 817 days in filing - Condonation of ... ... ... ... ..... was condoned enabling filing of appeal against the assessment order of sales tax authority. 4. emsp We have carefully considered the submissions. After rendering of the order of the Commissioner (Appeals) dated 4-2-2005, the applicant chose not to file an appeal. The claim that they paid under protest has no meaning, when they have not filed appeal against the order dated 4-2-2005. Further even after the Hon rsquo ble Supreme Court rendered their decision in January 2006 and which was published in February 2006, and they started availing the benefit from February 2006, they have not chosen to file the appeal within a reasonable period. Further, the issue in these appeals relates to short period. 5. emsp We hold that no sufficient cause has been shown for granting condonation of such a long period of delay. 6. emsp Therefore, the condonation applications are dismissed stay petitions are dismissed and consequently, the appeals are also dismissed. (Pronounced in the open Court)
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2007 (7) TMI 541
Interest and penalty ... ... ... ... ..... in the case of Tube Investments of India Ltd. has also granted the benefit of time-bar. The prayer for setting aside the penalty and interest is acceptable in view of the explanation carved out. in Clause 82 of the Finance Act and in terms of judgment rendered in the case of Chandrapur Magnets and Tuber Investments of India Ltd. The appellants have already reversed the 8 amount and hence, penalty and interest is not required to be levied in the matter. The appeal is allowed by setting aside the penalty and interest in the matter. rdquo 6. emsp I find that the above ratio of the Division Bench squarely covers the issue before me. As such, the issue is squarely covered in the favour of the appellants and the impugned order to the extent of confirmation of duty is upheld and the impugned order to the extent it upholds imposition of penalty and interest is liable to be set aside and I do so. Accordingly, the appeal is allowed as indicated above. (Dictated and pronounced in Court)
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2007 (7) TMI 540
Cenvat credit of Service tax - Outward freight ... ... ... ... ..... s included the cost of the transport in question also and duty was paid on an assessable value including the disputed freight. His contention is that in such a case, credit is available in terms of the decision of this Tribunal in the case of Gujarat Ambuja 2007 (6) S.T.R. 249 (Tribunal) 2007 TIOL 539 CESTAT, Delhi . 4. emsp The factual position, as to whether the disputed freight formed part of the assessable value, is required to be verified. If it had, service tax paid on such outward transport would be available as credit. 5. emsp In the result, the impugned order is set aside and the case is remanded to the Commissioner (Appeals) for a fresh adjudication. (Dictated and pronounced in open Court)
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2007 (7) TMI 539
Appeal by Department - Review by Committee of Commissioners ... ... ... ... ..... ts contained in the above application, I must readily accept the submission of learned consultant. The impugned order was accepted by the Committee of Commissioners on 14-7-2006 in view of a decision of the Hon rsquo ble Supreme Court. Later on, the appellant-Commissioner came across a decision dated 21-8-2006 of the Tribunal rsquo s Larger Bench (Gauri Plasticulture (P) Ltd. v. Commissioner of Central Excise, Indore 2006 (202) E.L.T. 199 (Tribunal) 2006-TIOL-1121-CESTAT-MUM-LB and decided to file appeal against the impugned order, in the light of such decision. In other words, after the Review Committee accepted the impugned order, the appellant-Commissioner reviewed it on his own accord. The appellant was acting without jurisdiction. The Appellate Commissioner rsquo s decision, once accepted by the Review Committee, stands accepted by the Revenue. The present appeal is dismissed as not maintainable. Misc. petitions also get dismissed. (Dictated and pronounced in open Court)
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2007 (7) TMI 537
Refund claim - EOU, 100% EOU - Duty paid under protest - EXIM - Capital goods ... ... ... ... ..... e, deserves to be set aside. The lower authority is directed to grant the subject refund claim to the appellants, if otherwise admissible under the provisions of Section 11B of the Central Excise Act, 1944 rdquo . As against the above findings of the ld. Commissioner (Appeals), the Revenue has not produced any evidence to show that the respondents had not paid the duty to the suppliers of the goods and the investigation has revealed that the respondent is in error. If it is undisputed that the respondent is a 100 EOU, the rights of the respondents to get the capital goods without payment of duty cannot be abrogated. Hence, in the facts and circumstances of the case, the order-in-appeal passed by the ld. Commissioner (Appeals) is correct and legal and does not require any interference. 3. emsp Accordingly the appeal filed by the Revenue is rejected and the cross-objection filed by the respondent being in support of the Order-in-Appeal, is also disposed off. (Dictated in court)
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2007 (7) TMI 535
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... ds would not be admissible to the manufacturer. It was further held that the manufacturer would not become entitled to the benefit upon his final product subsequently becoming dutiable. Ld. SDR has pointed out that the civil appeal filed by the party against the above decision of the Tribunal was dismissed by the Supreme Court vide 2003 (158) E.L.T. A273 (S.C.). We note that the civil appeal was dismissed as not maintainable and that the apex Court did not pronounce on the merits of the case. In the result, Surya Roshni (supra) remains a decision of the two Member Bench of the Tribunal. Larger Bench decision of the Tribunal, which is in favour of the assessee, and the decision of the regular Bench in M. Tex and D.K. Processors (P) Ltd. (supra) affirmed by the Supreme Court will, apparently, govern the present case. 2. emsp In the result, there will be waiver of pre-deposit and stay of recovery in respect of the duty and penalty amounts. (Dictated and pronounced in open court)
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2007 (7) TMI 534
Confiscation and penalty - Prosecution - Acquittal - Effect ... ... ... ... ..... p The acquittal from the criminal proceedings was in absence of any evidence. 6. emsp In the department proceedings under the Central Excise Act where the demand is confirmed in respect of goods found outside the factory and same is admitted by the authorized representative of the appellant. In his statement, under Section 14 of Central Excise Act that the goods were removed without payment of duty and unaccounted goods found in the factory. During investigation, Shri Kapil Gupta also produced 12 loose sheet papers which shows the clearance of goods without payment of duty and explained the entries made by him. As the excisable goods found outside the factory on which no duty has been paid and certain goods were found in the factory which was not entered in the statutory record, therefore, I find no infirmity whereby such goods were confiscated and appropriate duty has been demanded and penalties were imposed. The appeals are dismissed. (Dictated and pronounced in open Court)
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