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Central Excise - Case Laws
Showing 141 to 160 of 190 Records
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2008 (10) TMI 234 - CESTAT, NEW DELHI
Clandestine removal – penalty – shortage of material – held that – assessee were required to explain the shortage, if any. In the absence of satisfactory explanation, duty requires to be paid. However, admission of shortage cannot be straightway taken as admission of clandestine removal. The charge of clandestine removal is a serious charge which is required to be proved by reliable evidence - finding of the Commissioner (Appeals) that stock found short could not be considered as a case of clandestine removal unless supported by any other corroborative evidence looks reasonable
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2008 (10) TMI 231 - CESTAT, KOLKATA
Cenvat Credit – Common Inputs – No separate accounts – Rule 6 read with Rule 14 and 15 of Cenvat Credit Rules, 2004 – held that - since the Liquid Nitrogen in questions has been cleared at nil rate of duty and the same has been manufactured from the duty-paid Nitrogen, credit in respect of which has been taken, the duty-demand at the rate of 8% of the value of nil rated clearance is in order and the same it confirmed along with the interest on the same. However, considering the circumstances of the case and the fact that the Appellants have given all particulars in their regular returns, this is not a fit case for imposition of penalty and therefore, the penalty is waived.
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2008 (10) TMI 228 - CESTAT, MUMBAI
Valuation – Free of cost (FOC) supply – Held that - As there was no suppression of facts with an intention to evade duty, the major portion of the demand for the period from 02/96 to 01/98 was hit by the limitation of time bar. Even otherwise also, on merits of the case, the entire demand is not sustainable as on perusal of the tender & purchase order, it is clear that the contracted value is deemed to be the normal price i.e. the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal where the buyer is not a related person and the price is the sole consideration for the sale as defined in Section 4(1)(a) of CEA 1944 – revenue appeal rejected.
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2008 (10) TMI 227 - CESTAT, CHENNAI
Job Work – Demand of duty - There is no dispute that the appellants M/s. Devi Metal Works had only converted aluminium plates into sheets on job work basis during the material period. There is no demand for clearances of such aluminium sheets by M/s. Devi Metal Works; the demand is on aluminium circles manufactured by M/s. Ganesh Industries during the material period out of the aluminium sheets supplied by M/s. Devi Metal Works. – held that - As the aluminium circles were not manufactured by M/s. Devi Metal Works, demand of duty on them for the clearances of aluminium circles is not at all justified and deserves to be vacated – demand and penalty set aside.
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2008 (10) TMI 225 - CESTAT, BANGALORE
Cenvat / Modvat Credit on Capital goods - the machinery procured by the appellant is of a type requiring higher power. Consequently, the appellants had to obtain a dedicated feeder line of 1000 KVA which is different from the 400 KVA which they have used prior to the installation of the said machinery – held that - When the appellant had to invest huge sums on cables for establishment of a feeder line, definitely these cables are used in connection with the manufacture of final products in the factory - In view of the nature of these goods they can definitely be considered as capital goods
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2008 (10) TMI 224 - CESTAT, NEW DELHI
Twice Payment of Duty – Refund – Period of limitation - assessee initially debited the amount from the Cenvat Account. Subsequently, they deposited the same amount in cash through TR-6 Challan in terms of the order of the Settlement Commission – assessee approached the department for adjustment of excess paid - Held that - it cannot be treated as claim of refund under Section 11B of the Act. In other words, it is a case of adjustment of the amount of duty paid twice - It is not hit by limitation under Section 11B of the Act as it being merely an accountal adjustment
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2008 (10) TMI 222 - CESTAT, MUMBAI
Cenvat Credit – Supply to SEZ – Reversal of 8% on exempted goods – rule 6 – Conversion of FTZ into SEZ – Held that - It can be seen that during the relevant period though the status of KFTZ was changed in to KSEZ by ministry of Commerce and Industries, the provisions of Central Excise remained the same i.e. Section 3 of Central Excise Act, 1944 and rule 2(8) of Central Excise Rules, 1944 indicated the KSEZ as KFTZ only. It is undisputed that supplies were made to units located in the survey numbers as indicated in rule 2(8) of Central Excise Rules, 1944. - In the said position of law governing eligibility to retention of MODVAT credit on export goods, the said Notfn. No- 12/2001 can also construed as clarificatory Notfn. Issued to formalize the continuity of benefit contemplated in Notfn. No. 126/94 to units located in erstwhile Kandla Free Trade Zone and later Special Economic Zone, as the units continued to qualify as 100% EOU, irrespective whether these were referred as units in Free Trade Zone or Special Economic Zone”. – Reversal of 8% is not required.
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2008 (10) TMI 220 - CESTAT, CHENNAI
Interest – delayed reversal of cenvat credit – goods removed as such - Section 11AB provides for recovery of interest in cases of delayed payment of duty. In the instant case, an amount equal to the credit availed is paid on a date subsequent to the date of clearance of such inputs. Held that - the argument that Section 11AB applied in such cases is not correct. No provision in the statute enabling recovery of interest in cases of delay in reversal/payment of credit relatable to inputs removed has been pointed out by the Revenue. – Revenue appeal dismissed.
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2008 (10) TMI 215 - MADRAS HIGH COURT
Stay of recovery - pre-deposit - tribunal granted 50% stay - As per the law laid down by the Honorable Supreme Court it is incumbent on the part of the petitioner to establish that he would suffer undue hardship if the amount is recovered from him. Thus, the petitioner has not made out any case to dispense with the pre-deposit. However, the tribunal has taken a very lenient view to dispense with 50% of the amount demanded - Regarding maintainability of the writ petition, as pointed out by the Assistant Solicitor General, any order made under Section 35(F) is appealable to the High Court, which includes an order refusing to dispense with pre-deposit. But, the petitioner has not chosen to prefer any appeal and on this ground also the writ petition is liable to be dismissed
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2008 (10) TMI 208 - CESTAT, CHENNAI
Rule 16 – returned goods – re-labeling / re-packing – Chapter Note 7 of Chapter 27 - The goods returned in packs - These packs were relabelled and repacked into smaller packs - Guru did not pay duty on the clearance after relabelling as the goods had initially been cleared on payment of duty - labelling or re-labelling and packing in retail packs from bulk packs constitutes manufacture as per chapter note – held that demand of duty is not sustainable.
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2008 (10) TMI 204 - CESTAT, NEW DELHI
Refund of unutilized credit – commissioner (appeals) allowed refund – held that Refund in cash from Cenvat credit account is an exception. The only exception is in respect of credit attributable to input which has gone into export product. The decision in the case of Rajashree Cement and Purvi Fabrics & Texturise (P) Ltd. are relevant to the present facts of the case. The case of Deepak Vegetable Oil Industries has been wrongly relied upon by the Commissioner (Appeals). Therefore, his order allowing cash refund of the amount from Cenvat account is not legal and proper. - refund rejected.
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2008 (10) TMI 197 - MADRAS HIGH COURT
Production Capacity Based Duty under section 3A of the Central Excise Act, 1944 – Tribunal had directed the petitioner to pre-deposit a sum of Rs. 6,00,000/- against a demand of duty amounting to Rs. 18,13,200/- as duty - The main contention of the e petitioner is that the demand for payment of excise duty has been made without finally assessing the production of the petitioner Company – Department contended that it is the matter is entirely within discretionary power of tribunal – Held and directed the tribunal to Tribunal, to dispose of the appeal, pending on its file, on merits, and in accordance with law, within a period of eight weeks from the date of receipt of a copy of this order, without insisting on the petitioner making the pre-deposit
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2008 (10) TMI 196 - CESTAT, CHENNAI
Refund - Excise duty paid despite exemption notification – unjust enrichment - There is no dispute that the appellants had not received the amount of duty charged by it in the relevant invoices from its buyer, M/s. BEML. - They did not issue any credit note to M/s. BEML to balance their accounts. Revenue has no case that the appellants had collected duty amount initially at the time of clearance of the goods. – Held that refund of the impugned amount will not involve unjust enrichment and that the appellants are entitled to cash refund of the same. The appeal is allowed.
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2008 (10) TMI 195 - CESTAT, CHENNAI
Provisional Assessment – Quantity Discount – Cash Discount – Earlier department disallowed abatements towards cash discount, quantity discount etc which resulted in demand of differential duty. The demand was contested. In appeal the claim of the assessee was allowed – assessee was not possessed of actuals of discounts at the time of clearance of the goods to their depot/consignment agents and hence sought permission of the Department for provisional assessment – department denied the provisional assessment – held that provisional assessment is allowed.
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2008 (10) TMI 194 - CESTAT, MUMBAI
Payment of Interest on Late Payment of duty utilizing Cenvat Credit - Rule 3(4) of Cenvat Credit Rules, 2002 relating to utilization of credit does not refer to payment of interest from Cenvat credit account. In such situation, credit cannot be utilized for payment of interest as it is not one of the specified purposes under the rule. Interest can be paid in cash or through PLA only.
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2008 (10) TMI 193 - CESTAT, CHENNAI
Unjust Enrichment – Refund of Excess Duty Paid - Assessee relies solely on the judgment of the Madras High Court in Dollar Co. which held that the uniform sale price before and after the change in classification, valuation etc. indicated that the excess duty paid had not been passed on. This judgment was affirmed by the Apex Court when the civil appeal filed by the revenue against the same was dismissed. In the Allied Photographies India Ltd. the Apex Court held that this factor alone was not conclusive to find that the duty burden had not been passed on. - lower authorities have not rendered any finding on the claim of the assessee that the processing charges per unit quantity remained same throughout in the material period in respect of a given variety. The matter is therefore remanded to the original authority to allow the cash refund to Jansons subject to its claim being found correct. The appeal is allowed by remand.
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2008 (10) TMI 191 - CESTAT, CHENNAI
Cenvat Credit – Activity held to be non-excisable – assessee paid duty on drawn wires after taking and utilizing credit - The statutory provisions allow an assessee to avail duty paid on inputs when it receives them in its factory. The appeal filed by the revenue has mainly taken the ground that in case the supplier manufacturer of spring steel wire claimed refund of the duty paid, the same would have to be refunded. - Even if the jurisdictional authorities at the supplier manufacturer’s end assessed the duty on the inputs incorrectly, the authorities having jurisdiction over the recipient manufacturer cannot reopen the assessment reflected in the invoices. As long as the respondent manufacturer had taken reasonable steps to know the licit origin, identity and the address of the manufacturer, the assessee can avail the credit as reflected in the invoices accompanying the inputs. – benefit of credit can not be denied and demand is not sustainable.
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2008 (10) TMI 190 - CESTAT, CHENNAI
Refund claim by the buyer / purchaser of goods – period of limitation - There is no dispute that the respondents had filed the refund claims initially on 4-12-02 with the department and that they were returned to them for resubmitting them with certain original documents. There is also no dispute that the respondents had purchased the DC motors under sale invoices raised by WIL on them arid that the dates of these invoices were considered by the Commissioner (A) to find that the respondents had filed the refund claims in time. As per Section 11B(5)(e) of the CEA, the relevant date to compute one year period for filing claim for refund of excess paid duty where the claim is made by the buyer of the goods is the date of purchase of the goods by such buyer. The Commissioner (A) has held the impugned refund claims to have been filed in time strictly in terms of the relevant statutory provisions as discussed above. – Refund allowed.
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2008 (10) TMI 184 - CESTAT, NEW DELHI
Confiscation of non-accounted excess stock found in the premises - quantity of finished goods not accounted for at the time of visit by the officers is quite substantial - About 190 MTs. of waste paper was found to be over and above the stock of waste papers recorded in their accounts, which according to the learned Advocate constitute only 2.7% of the total stock of waste papers. - The obligation to account for the raw materials and manufactured goods is a strict one. This is a preventive measure. Non-accountal of substantial quantity of finished goods and raw materials are admitted. The explanation offered for such excess stock found is not convincing though there are mitigating circumstances. They failed to maintain proper account and Rule 10A of Central Excise Rules, 2002 is attracted. – Confiscation upheld but redemption find the penalty reduced.
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2008 (10) TMI 182 - CESTAT AHMEDABAD
DTA clearance by EOU - The Commissioner has relied upon the statements of the owner of the transport company, the statements of Shri Kadarbhai, who had given delivery challans in the name of a fictitious company and there were statements of the employees of the appellant how the transport was arranged and how papers were managed etc. Therefore, we find that the claim of the appellants that goods were not unauthorisedly diverted has been correctly rejected by the Commissioner. The appellants also have submitted that M/s. RTPL had demanded the CT-3 forms back subsequently and this shows that they were involved. The Department’s case has nothing to do with the CT-3 certificate and the Department’s case is that the CT-3 was only for record purposes and the goods were actually sent for disposal at Bhiwandi – Demand of duty, interest and penalty upheld.
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