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Central Excise - Case Laws
Showing 41 to 60 of 190 Records
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2008 (10) TMI 530
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... ... ..... at VBCL have agreement with AMAS making it mandatory for AMAS to incur certain quantum of expenditure on advertisement and sale promotion of the goods manufactured by VBCL or that there is other evidence indicating that AMAS are incurring advertisement expenses and recovering the same from the dealers, on instructions of VBCL. If AMAS, with the dealer rsquo s consent incur certain expenses for sales promotion and advertisement of the goods, which will benefit AMAS as well as the dealers and AMAS share the advertisement expenses with the dealers, such advertisement expenses cannot be added to the assessable value of the goods manufactured by VBCL. We, therefore, hold that the advertisement charges being recovered by AMAS from dealers at the rate of Rs. 11.50 per crate are not includible in the assessable value. 6. emsp In view of our above findings, the impugned order is not sustainable and the same is set aside. The appeals are allowed. (Pronounced in open court on 3-10-2008)
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2008 (10) TMI 529
Demand - Limitation - Extended period - Suppression - Held that: - such adoption of lower value was not with intention to evade payment of duty, especially when such duty is available as credit to their own unit - When the goods were being cleared to their sister unit, who were availing credit of duty paid at the same time, it is difficult to hold that there was any intention on the part of the assessee to pay less duty, specifically when there is no other evidence on record to reflect upon such intention - appeal dismissed - decided against Revenue.
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2008 (10) TMI 528
Valuation - Cash discount ... ... ... ... ..... old Section 4 (prior to amendment made on 1-7-2000) will be applicable in this case. It is fairly well-settled law that trade discounts (by whatever name) are admissible deductions subject to the condition that the same is known prior to clearance of the goods and are passed to the buyer of the goods. In the present case even though the discounts have been claimed, the same have been recovered by the appellant through commercial invoices, as detected by the department. This makes these discounts/commissions includible in the assessable value. I am unable to subscribe to the view of the appellant that these are post manufacturing expenses and hence not includible, when the settled legal position is clear. The decision cited by them also does not cover the case. Consequently the duty demand is justified. rdquo We don rsquo t find any reason for setting aside the order of the Commissioner (Appeals) and accordingly appeal is rejected. (Pronounced in the open Court on 10-10-2008)
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2008 (10) TMI 525
Stay/Dispensation of pre-deposit - Clandestine removal ... ... ... ... ..... le to the appellant. rdquo 7. emsp We are thus of the considered view that the appellant does not have any prima facie case and, therefore, not entitled to full waiver. The fact that the appellant unit has been declared as sick industry and the matter is pending with the BIFR per se is no ground to dispense with the pre-deposit. In support of the plea of financial hardship, the appellant produced balance sheet. In our opinion, in a case of clandestine removal, the balance sheet cannot be accepted as a true index of one rsquo s financial position. 8. emsp However, taking into account the entire facts and circumstances, we direct the appellant to deposit 50 (fifty per cent) of the duty demand within eight weeks and report compliance of the order on 30-12-2008. On such deposit, the pre-deposit of the balance amount of duty and penalties shall stand waived and recovery stayed till disposal of the appeal. (Dictated and pronounced in the open Court on the 24th day of October, 2008)
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2008 (10) TMI 522
Stay/Dispensation of pre-deposit ... ... ... ... ..... n of Rule 7(5) of the Central Excise Rules, 2002. The amount in question pertains to the pre-deposit made by the appellant in terms of Section 35F of the Central Excise Act. We are prima facie of the view that while making refund of the pre-deposit the provisions of Rule 7(5) cannot be applied. The order of the Commissioner (Appeals) is accordingly stayed. (Dictated and pronounced in the open Court)
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2008 (10) TMI 519
Stay/Dispensation of pre-deposit - Clandestine removal, proof ... ... ... ... ..... ocate that raising demand of duty for the past period based upon the test report of the sample from a particular lot is not in accordance with the settled proposition of law that the test report of one particular lot can be made applicable to that lot only and not to the previous clearances. We also find favour with the appellant rsquo s contention that observations made by the Commissioner are in the nature of facit approval of the appellant rsquo s plea that there is variance in consumption of supari in each lot and negligible variation in content shown in the test report and as declared by the appellant cannot ipso-facto leads to the inevitable conclusion that same quantum of supari used in the sample drawn in January 2005 would apply for the period 2002 to 2004. 5. emsp As such, we are of the view that the appellants have been able to make prima facie case in its favour so as to allow stay petitions unconditionally. We order accordingly. (Pronounced in Court on 8-10-2008)
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2008 (10) TMI 518
Condonation of delay in filing appeal - Appeal to Appellate Tribunal - Time Limitation - Held that: - there is an arguable case on behalf of the Revenue and, therefore, we are of the view that it would be in the interest of justice to condone the delay - Being satisfied that the delay caused on the part of the Department was not deliberate, we condone the delay and thus allow the COD application - decided in favor of Revenue.
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2008 (10) TMI 517
Valuation - includibility - notional profit - Rule 8 of Cenvat Credit Valuation Rules, 2002 - Held that: - It is not a case where the goods are being sold by one assessee to another. It is basically taking out money from one pocket and putting the same in other pocket of same trouser. The other unit at Nadiar was appellant’s own unit and it was only for the procedural and technical purposes that the duty was required to be paid at the time of clearance from the assessee’s unit. Tribunal, in number of cases, has held that where the duty paid in one unit is available as credit to other unit of the same assessee, the entire issue is Revenue neutral and the demand should not be confirmed on the said count.
The entire demand being available as credit to their own unit, confirmation of the same was not justified - appeal allowed - decided in favor of appellant.
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2008 (10) TMI 516
Valuation - Installation charges - Held that: - Tribunal in case of M/s. Rhino Machines (P) Ltd. v. CCE, Vadodara, [2004 (12) TMI 139 - CESTAT, MUMBAI], has held that the goods to be assessed in the form in which cleared from the factory and subsequent activities of fabrication, erection and technical supervision charges at site will not form a part of the assessable value of the goods cleared from the factory - The installation charges being a separate activity, we find no reason to hold that the same was a part of the transaction so as to include the charges collected on value of such activity in the assessable value - appeal allowed - decided in favor of appellant.
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2008 (10) TMI 515
Refund claim - Maintainability of ... ... ... ... ..... g had claimed the benefit of the above notification. Even if it be assumed that the Udamalpet Unit cleared processed yarn without payment of duty in terms of the above notification, it was not open to the Department to proceed against the Chennai Unit. The Department could, in such an eventuality, proceed for recovery of duty from the Udamalpet Unit. At the end of the Chennai Unit, the clearance of yam under Rule 96E without payment of duty was perfectly in order inasmuch as the Commissioner (Appeals) has found that the above clearance of yarn under Rule 96E was in accordance with the procedure prescribed by law. 4. emsp The refund claim is therefore liable to be allowed on merits. The original authority shall have to refund the amount to the claimant subject to unjust enrichment. For this limited purpose, after setting aside the orders of the lower authorities, I remand the case to the original authority. The appeal is disposed of. (Dictated and pronounced in the open court)
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2008 (10) TMI 513
Payment of duty on monthly basis - Delay in payment ... ... ... ... ..... on of the Hon rsquo ble Gujarat High Court reported in 2002 (52) RLT 755. 2. emsp After hearing both the sides and on perusal of the records, I find that the main contention of the learned Joint CDR that the provisions of forfeiture facility under Rule 8 is mandatory. After going through the decision of the Hon rsquo ble Gujarat High Court and the Tribunal in the above cases, I find that the forfeiture facility of two months under Rule 8 of the Rules is maximum limit. Therefore, the contention of the learned CDR has no merit. I find that the Respondent is a SSI unit and due to financial crisis, there was a delay in payment of duty, which was paid with interest. 3. emsp After going through the facts and circumstances of the case, the Commissioner (Appeals) reduced the period of forfeiture. Therefore, I do not find any reason to interfere the order of the Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is rejected. Dictated and pronounced in the open Court
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2008 (10) TMI 512
Interest on delayed refund ... ... ... ... ..... d to be no longer good law. In the present case, the appellants deposited the duty amount while filing the appeal before the Hon rsquo ble Supreme Court and it has already been settled that the same amount would be treated as pre-deposit. So, in my view, the decision of the Hon rsquo ble Supreme Court in the case of I.T C. Ltd. (supra) is squarely applicable herein. Ld. Advocate relied upon the decision of the Hon rsquo ble Supreme Court in the case of Shreeji Colour Chem Industries (supra). In that case, refund was filed under Rule 173L of the erstwhile Central Excise Rules for return of the duty paid goods in the factory of the manufacturer. I find that the case of Shreeji Colour Chem. Industries (supra) is totally in different facts and the said case law is not applicable herein. So, I do not find any merit in this appeal of the appellants. The order of the Commissioner (Appeals) is upheld. The appeal is rejected. (Order dictated and pronounced in open court on 24-10-2008)
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2008 (10) TMI 511
Interest - Cenvat/Modvat - Irregular availment of credit on capital goods - Held that: - the respondents availed 100% credit in the financial year 2000-01 instead of 50% of credit. The respondents were entitled to utilize the balance 50% in the next financial year. No proceedings were initiated for alleged irregular availment of credit during the financial year 2000-01. So, the demand of interest under Section 11AB of the Act cannot be sustained without determination of demand of duty - appeal dismissed - decided against Revenue.
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2008 (10) TMI 510
Appeal to Appellate Tribunal ... ... ... ... ..... minor son of 3 years old. Smt. Divya Jain filed the present application for substitution her name as proprietor to the firm in the present appeal. 2. emsp Rule 22 of CESTAT Procedure 1982 provides where in any proceedings the Applicant/Appellant/Respondent dies, the appeal shall abate, unless an application is made for continuance of such proceedings by or against the Applicant, as the case may be. 3. emsp In the present application the Applicant contended that the Applicant is only adult member in the family of late Deepak Kumar Jain except a son of three years old. The applicant also filed copy of death certificate of Deepak Kumar Jain. In view of that the substitution application under Rule 22 of CESTAT Procedure Rules 1984 is allowed. Registry is directed to allow the applicant to substitute the Applicant rsquo s name in the place of the present Applicant in accordance with law. The application is disposed of in the above terms. (Dictated and pronounced in the open court)
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2008 (10) TMI 509
Interest on Sugar Cess - Export under bond ... ... ... ... ..... dia. Further, sub-section (4) provides that provisions of the Central Excise Act, 1944 and rules made thereunder, including relating to refunds and exemptions from shall apply in relation to the levy and collection of the duty of excise under that Act. 7. emsp Notification No. 42/2001-C.E. (N.T.) dated 26th June, 2001 at clause V(b) specifically mandates payment of excise duty and interest thereof on any goods cleared for export is diverted to local use. As Sugar Cess is collected as a duty of excise, interest at applicable rate and from the period as is mentioned in notification No. 42/2001-C.E. (N.T.) will be payable by the respondent for diversion of the sugar to home consumption. 8. emsp In view of the above reasoning, we are of the considered view that the impugned order to the extent it sets aside the interest payable on the amount of Sugar Cess is unsustainable and is liable to be set aside and we do so. Appeal is allowed as indicated hereinabove. (Pronounced in Court)
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2008 (10) TMI 507
Remission of duty - Goods destroyed due to fire accident ... ... ... ... ..... of sugar damaged due to fire. Therefore, I agree with the ld. DR that the remission of duty on the quantity of 619 bags is not sustainable. The Tribunal in the case of U.P. State Sugar Corporation Ltd. (supra) held that no accident can be attributed to anybody rsquo s carelessness. So, the finding of the Commissioner on this issue, is not justified. Regarding the furnishing of the information about the accident to the Range Superintendent beyond the 24 hours, I find that the central excise officers verified the appellant rsquo s factory upon information by the appellant and ascertained the damage of 126 bags of sugar. So, the appellant is entitled to remission of duty to the extent of 126 bags of sugar. Accordingly, the impugned order is modified in so far as the appellant is entitled to claim the remission of duty involving 126 bags of sugar damaged during the fire accident. The appeal is allowed in the above terms. (Order dictated and pronounced in open court on 20-10-2008)
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2008 (10) TMI 506
Penalty - Clandestine removal ... ... ... ... ..... ebited the duty amount of Rs. 12,000/- vide PLA Entry No. 31 and 32, both dated 24-10-2001. The Adjudicating Authority confirmed the demand of duty and appropriated the amount as deposited by them and also imposed penalty of equal amount under Section 11AC of the Central Excise Act, 1944 along with interest. The Commissioner (Appeals) set aside the penalty. Hence, the Revenue filed this appeal. 2. emsp After hearing both the sides and on perusal of the records, it is seen that there is no material available for clandestine removal of the goods. There was confusion on payment of duty on the clearance of old and used capital goods. The goods were cleared under the cover of commercial bills. In view of that, I find that penalty under Section 11AC of the Act is not warranted. Therefore, I do not find any reason to interfere the order of the Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is rejected. (Order dictated and pronounced in open Court on 20-10-2008)
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2008 (10) TMI 505
Notification No. 29/02-C.E. as amended by Notification No. 34/02-C.E. ... ... ... ... ..... house and initially produced in Bangaigaon Refineries and Petrochemicals Ltd. It seems that the Department has demanded the duty, denying exemption, on the ground that the impugned goods have not come directly to the Budge-Budge Warehouse from the Refineries, but have been received from BPCL Bonded Warehouse from where it has come by pipelines to the Budge-Budge Terminal. 3. emsp After considering the submissions of both sides, we find that there is no warrant in the Notification to deny the exemption in such a case where the impugned goods have come via another warehouse. The law permits movement of the non-duty-paid petroleum products from the refineries to one warehouse and from one warehouse to another warehouse. As such, there is no violation of the legal provisions and the conditions of the Notification have been satisfied. Hence, we set aside the impugned Order and allow the Appeal. The Stay Petition also stands disposed off. (Pronounced and dictated in the open court)
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2008 (10) TMI 504
Cenvat/Modvat - Deemed credit - Notification No. 58/97-C.E. ... ... ... ... ..... e that in order to avail the deemed credit, as per Notification, inputs should have been received directly from the manufacturer and the payment of duty on inputs was required to be made by cheque drawn on his bank account or by bank draft or by banker rsquo s cheque. It is seen that in the present case, the Respondent themselves manufactured the goods and used captively in the manufacture of final product. It is revealed from the order of the Commissioner (Appeals) that the Respondent paid duty on strips in terms of the determination made by the Commissioner of Central Excise, Raipur. So, the payment of duty is not in dispute. Hence, it is proved that the Respondent complied with the conditions of the Notification. The Commissioner (Appeals) rightly set aside the adjudication order. Accordingly, I do not find any reason to interfere with the order of the Commissioner (Appeals). The appeal filed by the Revenue is rejected. (Dictated and pronounced in open court on 16-10-2008)
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2008 (10) TMI 503
Demand - Inputs received duty free exports products - Penalty ... ... ... ... ..... of proper advice. We are of the view that their case is at par with the case of Vandevi Texturisers Pvt. Ltd. (cited supra) decided by the Ahmedabad Bench. Hence, following the decision in the case of Vandevi Texturisers Pvt. Ltd., we hold that the duty demand in respect of the Hot Rolled Coils is not sustainable since the full duty on the Cold Rolled Coils has already been paid. As regards the contravention of the proper procedure in not first paying duty on the Hot Rolled Coils and taking the credit of the same, we are of the view that some penalty is required to be imposed on the appellants. Considering the entire facts and circumstances of the case, we reduce the penalty to Rs. 5.00 lakhs (Rupees five lakhs) in respect of both the cases and order that pre-deposit of Rs. 5.00 lakhs (Rupees five lakhs) made by the appellants shall stand adjusted against the penalty determined by us. Both the appeals are allowed in the above terms. (Dictated and pronounced in the open Court)
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