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Central Excise - Case Laws
Showing 61 to 80 of 190 Records
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2008 (10) TMI 501
Clandestine removal - Evidence ... ... ... ... ..... led to supply the production figures during those months and, therefore, the Revenue calculated the demand of duty on the basis of Daily Plant Log Sheets and clearance of figures as recorded in the daily stock account. Thus, I do not agree with the findings of the Commissioner (Appeals). I agree with the finding of the Adjudicating Authority that such huge quantity of loss is beyond imagination. The respondent had given reasons for such losses. In my view, it is required to be verified by the Adjudicating Authority regarding the percentage of losses occurred in Daily Plant Log Sheets and the production record for central excise purposes. Accordingly, I set aside the impugned orders and the matter is remanded back to the adjudicating authority to examine the submissions in respect of the losses as contended by the respondents. The appeal filed by the Revenue is allowed by way of remand. Cross objection is disposed of. (Order dictated and pronounced in open court on 13-10-2008)
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2008 (10) TMI 500
Cenvat/Modvat - Input credit ... ... ... ... ..... Hence the goods were cleared without payment of duty. However, the appellants had taken care to reverse the credit attributable to the inputs in the products cleared by them. It was argued that once the Cenvat credit is reversed in terms of the Apex Court judgment rendered in Chandrapur Magnet Wires case, 1996 (81) E.L.T. 3 (S.C.) it is not correct to deny the credit. In view of this position, there is no justification for demanding 8 of the sale value of the exempted goods as Rule 57CC would not at all be applicable in a situation when the appellants manufacturing only one product. In my view, there is strong force in the contention of the learned Advocate. As the appellants had already reversed the Cenvat credit attributable to the inputs used in the product, the demand of 8 of the sale value of the goods is not justified. Hence the impugned order has no merit and the same is set aside. The appeal is allowed with consequential relief. (Pronounced and dictated in the court)
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2008 (10) TMI 499
Penalty - Cenvat/Modvat - Passing of excess credit ... ... ... ... ..... acture to either pay duty or reverse the Cenvat credit on clearance of used capital goods. This has been clearly brought out in the decisions cited supra. The legal position is that there is absolutely no justification for taking any penal action and even demanding the so called excess duty from the Respondents. The case law relied on by the learned DR is the decision of the Single Member Bench. The rules were only amended later to provide for reversal of credit in respect of the used goods on the depreciated value. Such rule also cannot have retrospective effect. Even the excess payment of duty has been explained by the Respondents on the grounds of differential rate of duty at the time of clearance of the goods and receipt. The Respondents paid duty at 16 . In any case, there is no justification for invocation of longer period. In these circumstances, I do not find any merit in the Revenue rsquo s appeal. Hence the appeal is dismissed. (Pronounced and dictated in the court)
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2008 (10) TMI 498
Stay order - Modification/Correction of ... ... ... ... ..... ed. 2. emsp We find that the Order Sheet had clearly mentioned that the appellant shall pre-deposit Rs. 25,00,000/- (Rupees Twenty Five Lakh Only) both in words as well as in figures, however due to typographical error this amount has been shown as Rs. 25,000/- (Rupees Twenty Five Thousand only). The amount should be read as Rs. 25,00,000/- (Rupees Twenty Five Lakh only) in the Stay Order and the same shall be deposited before 28th November, 2008 and report compliance on that date, Appeal to come up for hearing on 29th December, 2008. The memo filed for correction of the amount in the Stay Order is allowed. (Pronounced and dictated in open Court)
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2008 (10) TMI 497
Export - Place of export - Procedural irregularity ... ... ... ... ..... consideration in this appeal is whether without presence of any contrary material, the procedural irregularity shall be a bottleneck to rendering substantial justice. There is nothing in record to show that the export was questionable. No doubt, Revenue argued that procedural irregularity has prevented the Administrative Authorities to exercise control, but nothing revenue-implication could be patent from the impugned order except exercise of control. In view of the procedural irregularity, the Appellant should not be deprived of appropriate benefit admissible under law except a stroke of penalty as that was imposed by the Authorities below and that needs confirmation. 5. emsp In view of the aforesaid observations and findings, the Appellant succeeds in appeal except confirmation of penalty. 6. emsp In the result, the impugned order is set aside to the extent indicated above. (Operative part of the order with reasons of decision was pronounced in the open court on 1-10-2008)
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2008 (10) TMI 496
Stay/Dispensation of pre-deposit - Milk shake mixture - Classification of ... ... ... ... ..... tion of flavoured syrup, other than fruit found under Chapter 21. We find that Chapter 20 of the Tariff covers preparations of fruits, nuts or other parts of plants including fruit juices, whether or not containing added sugar or other sweetening matter. 7. emsp Ld. DR pointed out that the Applicants themselves declared the product as fruit syrup and not fruit juice. 8. emsp Prima facie, we find that ldquo Fruit Syrup rdquo is a preparation of fruit and it covers under Chapter 20. The submission of the ld. DR in respect of the classification of the fruit syrup would be looked into at the time of appeal hearing. We notice that the Applicant already deposited a sum of Rs. 26,00,000/-, which is sufficient for wavier of pre-deposit of balance amount of duty and penalties. Accordingly, the pre-deposit of balance amount of duty and penalties are waived till the disposal of the appeal. Both the stay applications are allowed. (Order dictated and pronounced in open court on 1-10-2008)
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2008 (10) TMI 495
Order - Appellate order - Correctness of - Cenvat/Modvat - Inputs ... ... ... ... ..... ave been sent for de novo adjudication. The onus to prove that the goods in question were actually received is clearly on the person who claims to have purchased and received the goods. If the person claims some benefit he has to prove the foundational facts. The Commissioner (Appeals) was not correct in fastening the onus on the Department and on the ground that the Department has failed to establish the non-receipt of the goods by the respondent, set aside the order without consequential order of remand. Clearly the Department can not prove the non-receipt, the assessee has to prove by positive evidence the receipt of goods so as to enable him to take cenvat credit. 3. emsp I accordingly without going into merit of the case, set aside the appellate order and direct that the matter be adjudicated de novo by the Assistant Commissioner in accordance with law. The appeal stands disposed of accordingly. (Dictated and pronounced in the open Court on the 31st day of October, 2008)
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2008 (10) TMI 493
Cenvat/Modvat - Transfer of inputs - Quantum of credit ... ... ... ... ..... final product receiving input on which duty of excise had been paid in terms of Section 3 of the Central Excises and Salt Act, was not warranted at the end of another manufacturer of final product who received the same input (credit-availed) from the former under Rule 57F(2) and (3). 4. emsp In the result, we hold that, where the input on which Modvat credit to the extent of 95 of the duty was availed by a manufacturer of final product on or after 2-6-1998, was removed as such under Rule 57F(2) and (3) of the erstwhile Central Excise Rules, 1944, the recipient of the input (being another manufacturer of final product) was entitled to full credit i.e., equivalent to the credit reversed by the supplier. The clarification contained in the Trade Notice cited by the learned SDR does not appear to be in keeping with the Modvat Credit Scheme. Therefore we set aside the impugned order and allow these appeals. (Operative portion of the order was pronounced in open court on 29-10-2008)
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2008 (10) TMI 491
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... 08 in Excise Appeal No. 1393 of 2008) 2009 (236) E.L.T. 623 (Tribunal) wherein the Bench took a view that malt roots come into existence as waste during the manufacture of barley malt, and as per the supplementary instructions of the Board, credit is available in respect of inputs contained in waste or by-product. The said order prima facie, in my opinion, does not lend any support to the appellants rsquo contention. However, I find substance in the other submission that the input services, namely, transport, insurance and the chartered accountant rsquo s fee cannot be dissected for the purpose of determining the value of barley malt and rootlets. That being so, I find a prima facie case in favour of the appellant for waiver of pre-deposit. 4. emsp Pre-deposit of the amount of duty with interest and penalty is accordingly waived and recovery stayed till disposal of the appeal. 5. emsp Stay application stands disposed of accordingly. (Dictated and pronounced in the open Court)
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2008 (10) TMI 490
Penalty - Reversal of ineligible Cenvat/Modvat credit before SCN ... ... ... ... ..... eversing the Cenvat credit accumulated as on 31-3-2003. It is not in dispute that the respondents were entitled to take cenvat credit upto 31-3-2003 as the notification came into effect from 1-4-2003. The respondent in the ordinary course as per the terms of the notification should have reversed the credit as it opted to take the benefit of exemption. However, they did so only on 15-4-2003 after the audit pointed out the irregularity in course of the visit of the premises on 8-4-2003. The case of the respondent is that they could not do the needful as the records was not available. In the facts of the case, I am of the opinion that the credit taken by the respondent having been reversed much before issuance of show-cause notice, it is not a fit case in which the Tribunal should interfere with the discretion exercised by the appellate authority in debiting of the penalty on the respondent. 3. emsp The appeal is accordingly dismissed. (Dictated and pronounced in the open Court)
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2008 (10) TMI 487
Cenvat/Modvat - Inputs - Line rejection - Held that: - the respondents had reversed credit availed in respect of inputs which were issued for manufacture and rejected at the assembly stage. The settled position on this aspect is that inputs issued and rejected at assembly stage are inputs issued for manufacture and no credit is liable to be reversed as such inputs are found not suitable and not consumed in further manufacture. In the circumstances, the impugned credit was not liable to be reversed - appeal dismissed - decided against Revenue.
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2008 (10) TMI 486
Appeal to Appellate Tribunal ... ... ... ... ..... lamed for that. He also submits that the Applicant had not explained the delay in filing application as it was filed on 4-8-2008. 3. emsp After hearing both the sides and on perusal of the records, I find that Rule 20 of CESTAT (Procedure) Rules provides for restoration of appeals dismissed for non-prosecution. It is seen that on the identical situation, the Division Bench of the Tribunal after considering the facts and circumstances of the case, condoned the delay in filing appeal. It appears that the applicant is a State Government undertaking Co-operative society and appeal was dismissed for negligence of the ld. Counsel. In view of that, I find that it is a fit case for recalling the Order dated 12-7-2006. Accordingly, the order dated 12-7-2006 is recalled and the appeal is restored to its original number. Since the appeal relates to the year 2004, the hearing is fixed to 15-12-2008. The applications are allowed. (Order dictated and pronounced in open court on 24-10-2008)
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2008 (10) TMI 485
Appeal - Restoration of appeal ... ... ... ... ..... al is dismissed for want of prosecution. rdquo 2. emsp Ld. Advocate on behalf of the Applicant submits that the Applicant had not received the hearing notice because their factory was closed down. He further submits that it came to their knowledge for rejection of the appeal by the Tribunal when the Central Excise Department started recovery of proceedings. 3. emsp After hearing both the sides and on perusal of the records, I do not find any force in the submission of the ld. Advocate. It is seen from the order of the Tribunal that the case was adjourned to 25-2-2000 in the presence of their counsel. It appears that the Applicant had not taken any step in the matter. It is also noted that the Tribunal passed the order in year 2001 and application was filed in July, 2008. There is no sufficient explanation for delay. In view of that, I do not find any merit in the application. Accordingly, the application is rejected. (Order dictated and pronounced in open court on 24-10-2008)
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2008 (10) TMI 484
Appeal by Department - Maintainability ... ... ... ... ..... he Tribunal given by the Commissioner. The Tribunal had found that the Commissioner had invoked the powers under Section 35B(2) but while signing the authorization he had not taken care to see the amended provisions of Section 35 B(2) on 18-5-05 when he signed the authorization. With effect from 13-5-2005, only the Committee of Commissioners could direct any Central Excise officer to file an appeal against an order passed by the Commissioner (A) if it felt that the said order was not legal and proper. 4. emsp The ld. Counsel submits that in the instant case, the authorization was signed by the Commissioner on 24-8-2006. As per the provisions of Section 35B(2) as it existed at the material time, any authorization issued under the said section has to be issued by the Committee of Commissioners. Therefore, in the instant case, the authorization filed was not valid. The appeal filed by the Revenue is dismissed as not maintainable. (Order dictated and pronounced in the open Court)
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2008 (10) TMI 483
Appeal by Department - Authorization ... ... ... ... ..... appeal rightly dismissed. In view of this it was submitted that the Commissioner (Appeals) order should be upheld and the revenue rsquo s appeal should be rejected. 4. emsp We have considered the submissions. We find that there are conflicting views on this issue, even among the High Courts. However, as against the Karnataka High Court views in favour of the revenue, we find that the decision of the Delhi High Court and the Bombay High Court supports the view taken by the Commissioner (Appeals) that once an order has been passed by an Additional Commissioner, directions given to Dy. Commissioner for filing an appeal are not correct and appeal filed by Dy. Commissioner against the order of the Additional Commissioner is not maintainable. Since the Bombay High Court is the jurisdictional High Court for this Bench, we respectfully follow the same and accordingly dismiss the appeal filed by the revenue and uphold the order of the Commissioner (Appeals). (Pronounced in the court)
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2008 (10) TMI 482
Cenvat/Modvat ... ... ... ... ..... under Rule 57E has been rightly denied and cannot be issued in the circumstances. 4. emsp We have considered the submissions. We find that the appeal filed by the Revenue makes a positive statement that neither the three show cause notices nor Order-in-Original allege any suppression of facts or mis-declaration, as they came to know of suppression only when the Cost-Audit report was received. While the Order-in-Original was issued in 1998, the allegations of suppression were made in the show cause notice issued in the year 2000. It is not understandable as to how a certificate under Rule 57E can be denied in 1998, when the show cause notice against which duty payment was made never alleged suppression of facts and such allegations have been made for the first time in the show cause notice issued in the year 2000. Clearly such order is not maintainable. We, accordingly, find no merit in Revenue rsquo s appeal and accordingly reject the same. (Dictated and pronounced in Court)
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2008 (10) TMI 477
Appeal by Department - Limitation ... ... ... ... ..... des powers of the Committee of Chief Commissioner or Commissioners of Central Excise to pass certain orders. I find that Section 35E is dealing with the filing of the appeal by Revenue whereby Committee of Chief Commissioners of Central Excise or the Commissioner of Central Excise may review the order. It has no concern with the Committee of Commissioners as prescribed under Section 35B(2) of the Act. So, the submission made by the ld. Advocate on this issue has no merit. 5. emsp Regarding the delay in filing appeal as explained by the ld. DR and on perusal of the records, I find that there is no negligence on the part of the Revenue. Ld. DR fairly submits that the time was taken by the Committee of Commissioners sitting at different places. Thus, there was sufficient cause for not presenting the appeal within the stipulated period. Accordingly the delay in filing appeal is condoned. The Misc. Application is allowed. (Order dictated and pronounced in open court on 15-10-2008)
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2008 (10) TMI 476
Order - Non-speaking order ... ... ... ... ..... ifiable. In the premises, I do not wish to interfere with the order of the Joint Commissioner. Accordingly the appeal is hereby rejected rdquo . It can be seen from the above reproduced portion of the impugned order that Ld. Commissioner (Appeals) has not dealt with the submissions made by the appellant before him. 5. emsp We are of the considered view that in respect of the excisability and dutiability of the product, the entire submissions made by the assessee before the authority has to be considered to come to a conclusion. We find that the impugned order to that extent is a non-speaking order. 6. emsp Accordingly, without expressing in opinion on the merits of the case and keeping all issues open, we remand the matter back to the Ld. Commissioner (Appeals) who should consider issue afresh after granting an opportunity of personal hearing to the appellant, before coming to any conclusion. Appeal allowed by way of remand and impugned order is set aside. (Dictated in Court)
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2008 (10) TMI 475
Interest and penalty - Delay in payment ... ... ... ... ..... uo before the Hon rsquo ble High Court of Karnataka. The lsquo Grounds of Appeal rsquo clearly show that the Commissioner has raised the ground pertaining to the levy of interest for the delayed period before the Hon rsquo ble High Court. In view of this position, we hold that the appellants are liable to pay interest for the delayed payment in this case. In view of the ratio of the Hon rsquo ble High Court of Allahabad judgment rendered in the case of M/s. Pee Aar Steels (P) Ltd. v. Commissioner of Central Excise, Meerut 2004 (170) E.L.T. 406 (All.) and the Tribunal rsquo s judgment rendered in the case of CCE and C, Aurangabad v. Padmashri V.V. Patil S.S.K. Ltd. 2007 (215) E.L.T. 23 (Bom.) we hold that the penalty is not leviable as already decided in this case by this Bench earlier Final Order No. 1332/2005 dated 9-8-2005, but the appellants are liable for interest for the delayed payment. The appeal is disposed of in the above terms. (Pronounced and dictated in the court)
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2008 (10) TMI 474
Notification No. 3/2001-C.E. ... ... ... ... ..... which have sugar electrolyte or fluid replenishment and used Exclusively or Alone for such purpose and do not have anything extra as is being pleaded by the Revenue before us. That would be reading the words ldquo Exclusive or Alone rdquo in the notification, which is not called for and cannot be done rdquo 5.4 emsp The fact that that the appellant could get a licence by submitting application in form 28D without any change in the product or manufacturing process also shows that one of the grounds relied upon by the Revenue to deny exemption has failed. 6. emsp In view of above discussion, we hold that the products Calcium Borogluconate Injection and Calcium Magnesium Borogluconate Injection are eligible for exemption as claimed by the appellants and therefore, we allow the appeals of the appellants with consequential relief and benefits to the appellant and reject the appeals filed by Revenue. Stay petition also gets disposed of. (Pronounced in the open Court on 10-10-2008)
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