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Central Excise - Case Laws
Showing 61 to 80 of 222 Records
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2007 (7) TMI 507
Penalty - Cenvat/Modvat - Duty paying documents ... ... ... ... ..... ss was shown in the invoices. Retraction by the sole-proprietor of the appellant of his statement made after three years and that too during his cross-examination, was of no consequence. As per Rule 57GG of the said Rules, no modvatable invoices could have been issued until goods were received by the registered dealer and such registered dealer could not have received the goods without a godown, the location and details of which were entered in his application for registration. It is, therefore, clearly established in all these cases that the appellant helped the assessees in getting the benefit of inadmissible Modvat credit on the basis of the invalid invoices issued by the appellant. The authorities below have, in all these three appeals, correctly appreciated the facts on record and have come to a valid finding warranting no interference by this court. All the three appeals are, therefore, dismissed. (Dictated and pronounced in the open Court on the 18th day of July, 2007)
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2007 (7) TMI 506
Cenvat/Modvat - Capital goods ... ... ... ... ..... Rule 4, the appellant was entitled to take credit whole amount of duty. 3. emsp On perusal of the record, I find that there is no dispute that during the financial year 2003-04 the appellant availed 50 credit and reversed whole amount of duty as they cleared the capital goods in the same financial year. In terms of first proviso to sub-rule 2(a) of Rule 4 provides that Cenvat credit in respect of capital goods shall be allowed for the whole amount of duty paid on such capital goods in the same financial year if such capital goods are cleared in the same financial year. The appellant could have taken balance 50 credit in the same financial year but they have taken the said credit in the subsequent financial year. So, I do not find any reason to deny the 50 credit availed during the subsequent financial year and, therefore, the impugned order is not sustainable and, accordingly, set aside. The appeal is allowed with consequential relief. (Dictated and pronounced in open Court).
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2007 (7) TMI 504
Cenvat/Modvat - Inputs - Zinc and Caustic soda ... ... ... ... ..... s regards Lithrex EP II, the ld. Counsel states that the same is a brand name whereas the declaration has been made for Lubricating Oil and Grease and hence Modvat credit is admissible. 4. emsp We find force in the argument of the ld. Counsel and we hold that the Modvat Credit in respect of Lithrex EP II is admissible. 5. emsp As regards the third item Steerol-C6, the credit has been denied on the ground that there is no reference to the parent invoice in the dealers invoice and to the RG-23D Register. It is stated by the ld. Counsel that the two relevant invoices are not from the dealer but from the main manufacturer viz. IOCL Blending Ltd. directly consigned to the appellants. As such, we find that the ground on which the credit has been denied is not valid, and hence we are of the view that the credit in respect of Steerol-C6 is admissible. 6. emsp Accordingly, the appeal is partly rejected and partly allowed in the above terms. (Dictated and pronounced in the open Court.)
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2007 (7) TMI 503
Cenvat/Modvat - Interest and penalty ... ... ... ... ..... al Authority did not impose any penalty on the appellant and the Commissioner (Appeals) imposed a penalty of Rs. 2 lakhs on the company, appeal by the Department and the same may be sustained. 5. emsp I have carefully considered the submission from both sides and perused the records. This is an admitted case of mistake in taking excess credit and the findings of the Original Authority and Commissioner (Appeals) had not shown any mala fide on the part of the appellant. It is also noticed that the appellant has not derived any benefit by taking the excess credit, inasmuch as they have not utilized this credit during the entire period in dispute. In the peculiar facts and circumstances of the case, where the appellant has not acted in any mala fide manner and has not derived any monetary benefit, I set aside the order of the Commissioner (Appeals) and restore the order of the Original Authority. 6. emsp The appeal is allowed on the above terms. (Dictated and pronounced in Court)
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2007 (7) TMI 502
Cenvat/Modvat - Inputs - Manufacture - Perforated nickel screen - Interpretation of Statutes ... ... ... ... ..... n on the returned goods amount to manufacture and the other when the processes so undertaken do not amount to manufacture. In the appellant rsquo s case, from the facts narrated in the show case notice, the findings of the original authority and that of the Commissioner (Appeals) and the same submissions on behalf of the appellant, I am not convinced that the processes undertaken on the returned goods would amount to manufacture. Such a view will lead to distortion in taxation by treating every repair, reconditioning as amounting to manufacture. Therefore, it is held that the scrap which was cleared was not the goods arising out of manufacture out of the returned goods. The differential duty demanded is in order. 7. emsp However, I fully agree with the contention that this being a case involving difference in interpretation, penalty is not warranted and is, therefore, set aside. 8. emsp The appeal is disposed off on the above terms. (Dictated and pronounced in the open Court)
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2007 (7) TMI 501
Refund - Unjust enrichment - Provisional assessments - Refund - Assessments ... ... ... ... ..... es of Salica Electronic Ltd. v. Commissioner of Customs, Mumbai - 1998 (98) E.L.T. 561 (Tribunal) and Orient Pre-Stressed Products (P) Ltd. v. Collector - 2003 (159) E.L.T. 1181 (Tri.- Del.), wherein it was held that, where an assessment was provisional with respect to one aspect, it must be held to be provisional for all purposes. 4. emsp In view of the case law cited by learned Counsel, the assessments must be held to be provisional for all purposes and the bar of unjust enrichment under Section 11B must be held to be inapplicable to the subject claim for refund which was admittedly consequential to finalization of provisional assessments on clearances made prior to insertion of sub-rule (5) under Rule 9B of the erstwhile Central Excise Rules, 1944, which amendment was not retrospective in operation. It is ordered accordingly. In the result, the impugned order is set aside and this appeal is allowed. (Operative portion of the order was pronounced in open Court on 12-7-2007)
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2007 (7) TMI 499
Tank, storage tank - Excisability ... ... ... ... ..... in the appeal memo clarified that the huge tanks for storage of petroleum products in oil refineries or installations are not excisable. For ready reference the relevant part of the Circular is reproduced below - ldquo Huge tanks made of metal for storage of petroleum products in oil refineries or installations. These tanks, though not embedded in the earth, are erected at site, stage by stage, and after completion they cannot be physically moved. On sale/disposal they have necessarily to be dismantled and sold as metal sheets/scrap. It is not possible to assemble the tank all over again. Such tanks are, therefore, not moveable and cannot be considered as excisable goods. rdquo 6. emsp We find that board circular is fully applicable on the facts of the present case. Therefore, in view of the board rsquo s circular, we find that the demand is not sustainable hence set aside. Consequential penalty is also set aside. The appeal is allowed. (Dictated and pronounced in open Court)
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2007 (7) TMI 497
Demand - Limitation - Penalty - Quantum of - Appeal to Appellate Tribunal - New grounds ... ... ... ... ..... invoked without specifying any particular clause thereof, cannot be said to be vitiated on account of non-mention of such clause. 5. emsp After giving careful consideration to the submissions, we are not impressed with the above arguments of the ld. Counsel. Rule 223A fixed penal liability on the erring manufacturer and even prescribed a determinate quantum of penalty (Rs. 2,000/-). The show-cause notice invoked Rule 173Q to impose penalty on the party. The authorities imposed a penalty of Rs. 5,000/- on them. The reason for this penalty is a fact admitted by the appellants. However, the quantum of this penalty exceeds that which was prescribed under Rule 223A. There can be no plea of limitation against the penalty. In the circumstances, we are constrained to sustain the penalty on the appellants to the extent prescribed under Rule 223A. In the result, penalty is sustained to the extent of Rs. 2,000/-. The appeal stands partly allowed. (Dictated and pronounced in open Court)
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2007 (7) TMI 496
Appeal before Commissioner (Appeals) - Limitation ... ... ... ... ..... h Speed Post on 4th April 2005 and it was not received back undelivered. Therefore, presumption is that the order was served within three days from the date of despatch. The revenue also submitted that enquiry was also made from the post office but the post office declined to give the information regarding service on the ground that enquiry was made after six months. 4. emsp We find that under the Central Excise Act, the period of limitation for filing the appeal starts from the date of communication of the order. In this case, there is no evidence to show when the impugned order was served upon the applicants. Therefore, it cannot be held that the appeal was filed after the period of limitation. In these circumstances, the impugned order is set aside, after waiving the pre-deposit of duty and penalties and matter is remanded to the Commissioner (Appeals) to decide the appeals on merits. The appeals are disposed of by way of remand. (Dictated and pronounced in the open Court)
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2007 (7) TMI 495
Penalty - Clandestine removal - Allegations admitted ... ... ... ... ..... judgment will not apply. The absence of sub-clause of sub-rule (1) of Rule 173Q will not act fatal to the imposition of penalty. It is further seen that apart from Rule 173Q, penalty also stands imposed under Section 11AC. As such, we find no justification for setting the aside the penalty in toto especially when the findings of clandestine removal stand admitted by the appellant. However, keeping the fact that the entire duty amount was deposited before issuance of show cause notice and by taking note of the Delhi High Court decision in the case of C.C.E. v. Malbro Appliances P. Ltd. - 2007 (208) E.L.T. 503 (Del.) 2007 (S) S.T.R. 256 (Del) 2007 (79) RLT 109 (Del), we reduce the penalty imposed upon first appellant to 25 of the confirmed amount of duty. Separate penalty imposed upon Shri Alokbhai Nandkishor Bansal, Director of the appellant company is, however, set aside. 4. emsp Both the appeals are disposed of in the above manner. (Dictated and pronounced in the open Court)
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2007 (7) TMI 493
Refund - Cenvat credit on inputs ... ... ... ... ..... urther, the condition relating to the restriction on the utilization of such credit lays down that the credit taken of AED (T and TA) can be utilized only for the payment of AED (T and TA). It is, therefore, observed that as per Rule 3 of the said rules, CENVAT Credit of AED (T and TA) can be taken even though the manner of utilization of such credit is restricted in terms of sub-rule (7). Therefore, such utilized accumulated credit of AED (T and TA) can be claimed as refund under Rule 5 of the CENVAT Credit Rules, 2004 on export of goods. Accordingly, it is clarified that clarification issued for the refund of AED (GSI) under Rule 5 of the CENVAT Credit Rules, 2002 vide Board rsquo s Circular No. 701/17/2003-CX, dated 12-3-2003, will be applicable to AED (T and TA) subject to the conditions and limitations as prescribed under the said rules. rdquo 8. emsp In the light of the above, the appeals are allowed with consequential relief. (Dictated and pronounced in the open Court)
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2007 (7) TMI 492
Refund - Unjust enrichment - the respondent had debited the amount of excise duty after the clearances of the goods from their factory premises.
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2007 (7) TMI 491
Cenvat/Modvat - Inputs - input sent out by the appellant to be used as denaturant Ethyl Alcohol and the said denatured Ethyl Alcohol is brought back to the appellant’s factory and consumed for their manufacturing - Held that: - the appellant is eligible to send the inputs on which credit has been availed by them outside the factory and receive back. As long as the dispatch of the inputs and receipt of the same, subsequently, into the factory premises in some form or otherwise, is not in dispute, the Modvat credit on such inputs cannot be denied to the appellant - appeal allowed.
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2007 (7) TMI 490
Refund - Limitation - Relevant date ... ... ... ... ..... the Act are attracted to the refund application filed by the petitioner. On the question of limitation, our conclusion is that since the claim is based on discovery of mistake, the period of limitation would not commence from the date of reversal of Modvat credit, but from the date when the mistake committed mutually of wrong reversal of credit by the parties was discovered in November, 1995. The refund claim has therefore to be held to be within time. ldquo 6. emsp The Revenue being aggrieved by the said judgment of the Hon rsquo ble High Court, took it up to the Hon rsquo ble Supreme Court in a special leave petition, which was dismissed by the Hon rsquo ble Supreme Court as reported at 2005 (186) E.L.T. A117 (S.C.). 7. emsp Accordingly, I find that the reasoning given by the ld. Commissioner (Appeals) in impugned order is correct and the same does not require any interference. The impugned orders are upheld and the appeals filed by the revenue rejected. (Dictated in Court)
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2007 (7) TMI 488
Demand and penalty - Deemed credit ... ... ... ... ..... goods which were to be cleared on payment of duty. In the present case, as the appellants are not taking any process which amount to manufacture on bed sheets regarding which deemed credit has been availed, the credit was rightly denied and appellants are also liable for penal action. 4. emsp In the present case, the appellants availed the deemed credit and paid the duty on higher value. The revenue rsquo s contention is that appellants are not entitled for deemed credit. The contention of appellant is that as the process undertaken by them are not amounting to manufacture, hence are not liable to pay duty. 5. emsp In these circumstances, the appellants availed the deemed credit and deemed credit is not admissible, as the appellants are not doing any process of manufacture but paid duty hence it is not a case for imposition of penalty. Therefore, penalty imposed on the appellant is set aside otherwise the demand is confirmed. (Order dictated and pronounced in the Open Court)
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2007 (7) TMI 486
Refund - Unjust enrichment ... ... ... ... ..... m M/s. Hindustan Platinum Ltd. is found to be contrary to the facts. The goods have been cleared only for the purpose of job work and M/s. Hindustan Platinum has been only paid job charges and the entire duty was paid and borne by M/s. Nirma Ltd. only. This has been borne out from the certificate produced by M/s. Hindustan Platinum. Further it is claimed that the amount of excise duty involved has been reflected as receivables in their books of account during the relevant years. It is not disputed that no Cenvat credit has been taken by M/s. Platinum Ltd. 8. emsp In the light of the facts narrated above, we hold, that the order of the Commissioner (Appeals) holding that the refund is not hit by bar of unjust enrichment appears legal and proper and does not require to be interfered with. 9. emsp The appeal (No. E/2774/04) by the Department is rejected. Appeal (No. E/3065/03) by M/s. Nirma Ltd. has become infructuous and accordingly dismissed. (Dictated and Pronounced in Court)
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2007 (7) TMI 485
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... ribed by notification in the Official Gazette, evidencing payment of duty on such inputs. Rule 52A(2) provided that the invoice shall be made out in quadruplicate and that the original copy should be for the buyer. The invoice No. 1932 dated 21-9-1994 of the manufacturer showed that it was original copy of the buyer and was issued under Rule 52A(1) of the said Rules. The particulars of this original invoice and the dispatch note issued by KSIPTCL showed that the same goods were directly dispatched from the factory of the manufacturer to the appellant in the same truck. Since the appellant had received the goods under the cover of invoice issued under Rule 52A, Modvat credit was admissible to the appellant. The impugned order denying Modvat credit of Rs. 63,900/- availed by the appellant on the strength of the said invoice No. 1932 dated 21-9-1994, cannot, therefore, be sustained and is set aside. The appeal is, accordingly, allowed. (Dictated and pronounced in the open Court)
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2007 (7) TMI 484
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... rises Ltd. wherein the excise duty is shown separately. Thus, the order passed by the Adjudicating Authority is not sustainable. rdquo The Revenue is not able to produce any evidence to indicate that invoices which were issued by M/s. Novartis Enterprises Ltd., did not mention the amount of excise duty paid, it is undisputed that M/s. Novartis Enterprises Ltd. had permission to import of capital goods and it is also undisputed that M/s. Novartis Enterprises Ltd. had cleared the same capital goods after following all the proper procedures. There is nothing on record to show that the appellants had not received the capital goods and have not put them to use in their factory premises. In view of these findings, I do not find any reason for interfering with the order-in-appeal passed by the ld. Commissioner (Appeals). 3. emsp Accordingly, the impugned order is correct and legal and does not require any interference. The appeal filed by the Revenue is rejected. (Dictated in court)
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2007 (7) TMI 483
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... unless the inputs were received in the factory under cover of any of the documents enumerated therein, there is a clear reference not only to rdquo triplicate copy of a bill of entry in sub-cause (c), but also to duplicate copy of a bill of entry generated on a Electronic Data Interchange System installed in any Customs or Central Excise Commissionerate rdquo in sub-clause (k) thereof. There was no valid reason to discard the original meant for importer, which was the duplicate copy of the Bill of Entry, since it was ldquo computer generated rdquo from the office of the Revenue department itself, and there was no allegation that it was not genuine. The Modvat credit was, therefore, availed under a valid modvatable document. The impugned orders denying admissibility of Modvat credit, and seeking recovery of the duty amount and imposing penalty cannot, therefore, be sustained and are hereby setaside. The appeal is accordingly allowed. (Dictated and pronounced in the open Court)
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2007 (7) TMI 482
Stay/Dispensation of pre-deposit ... ... ... ... ..... lue of the goods. The applicant relied upon the decision of the Tribunal in the case of CCE, Jaipur-II v Shruti Synthetics Ltd. as reported in 2005 (180) E.L.T. 275 (T) 2005 (67) RLT 380 (CESTAT-Del.). The applicant also pointed out that the Textile Committee. Act also applicable to State of J and K. Therefore, in the State of J and K the cess is also payable. 2. emsp We find that as the Textile cess is payable, therefore, in view of the above decision of the Tribunal, we find applicant had a strong case in his favour. Stay petition is allowed. The pre-deposit of the duty and penalty is waived. (Dictated and pronounced in the open court)
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