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Central Excise - Case Laws
Showing 81 to 100 of 190 Records
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2008 (10) TMI 471
Stay/Dispensation of pre-deposit ... ... ... ... ..... therefore the goods are not wholly exempted from duty. On perusal of the records and the submissions of the parties, we find that prima facie, the goods in question are not wholly exempted from duty and it is covered under serial No. 3 of the said notification. We have also noted that prima facie part of the demand of duty about Rupees Twenty two lakhs is barred by limitation. In view of that, we hold that the appellant have made out the prima facie case for waiver of pre-deposit of duty and penalty. The Commissioner (Appeals) rejected the appeal without going into the merits. Therefore, we set aside the impugned order and the matter is remanded back to the Commissioner (Appeals) to decide afresh on merits, without any pre-deposit. We make it clear that the observations made by us in this order would not influence to the parties while deciding the matter on merit. Stay application is disposed off. The appeal is allowed by way of remand. (Dictated and pronounced in open court)
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2008 (10) TMI 470
Interest on restoration of Modvat credit ... ... ... ... ..... us that both sides are harping on the principle of compensation. 4. emsp Compensation arises either where there is a breach of contract by one of the parties to the contract or where there is a violation of statutory provision in appropriate case. The offending party has to compensate the injured party. In the present case, the appellants have not claimed that they were compelled to reverse Modvat credit on account of departmental coercive action. They appear to have reversed Modvat credit out of their own volition. Later on, when the appellate authority ordered restoration of the credit, they lost no time to restore it. In this scenario, we do not think that the government should compensate the assessee by way of payment of interest. Moreover, the appellants have not been able to substantiate their claim under Section 11AA of the Act. No other provision of law has been cited before us. 5. emsp In the result, the appeal gets dismissed. (Dictated and pronounced in open court)
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2008 (10) TMI 469
Demand and penalty - Non-maintenance of job work records ... ... ... ... ..... ldex Industries by following the provisions of Notifications No. 83/94 and 84/94. No attempt what-so-ever has been made by the department to make any enquiry at the end of supplier to find out that necessary declaration was filed by him or not nor any attempt has made to verify whether the material said to have been received or despatched by the jobworker was actually sent or received by the supplier or not. The appellant have been able to produce records to show that the material received by him is duly accounted in his own register and was delivered to the supplier for which necessary labour charges were received. In the absence of any evidence to show that the billets manufactured by the jobworker out of the raw material supplied was not received by the supplier, no demand of duty can be raised against job worker. In view of the same I set aside the order of Commissioner demanding duty and imposing penalty and allow the appeal with consequential relief. (Dictated in Court)
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2008 (10) TMI 466
Stay/Dispensation of pre-deposit ... ... ... ... ..... rritories lying outside domestic tariff area. If that be the case, the clearance of cement by the appellants to SEZ was to be reckoned as lsquo export rsquo in which event this product cannot fall in the category of goods ldquo exempt from the whole of duty of excise leviable thereon or are chargeable to lsquo Nil rsquo rate of duty rdquo . Only those inputs which are used in or in relation to the manufacture of the final products coming within the scope of this expression would be covered by the above proviso. In other words, prima facie, the proviso to the above Notification is not attracted and consequently the appellants can legitimately claim the benefit of exemption from payment of duty on clinker in terms of the Notification. 2. emsp The appellants have made out prima facie case against the dues adjudged against them. Accordingly, 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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2008 (10) TMI 465
Order - Appealable order - Job work - Removal of semi-finished goods for processing ... ... ... ... ..... cleared to their sister unit for conversion into finished goods which were to be removed for home consumption on payment of duty or for export without payment of duty. If the goods resulting from the processing of copper anode and copper cathode were to be accepted as lsquo finished rsquo goods to be cleared in the aforesaid manner, the copper anode and copper cathode were to be legitimately treated as lsquo semi finished rsquo goods, which attracted Rule 16B. We are at a loss to understand why the above stand has been taken by the Commissioner in respect of goods which were accepted as semi-finished goods for the purpose of grant of permission under Rule 16B for the previous years. No change of process of manufacture has been noted in the impugned order, nor any change of law. 5. emsp On the above facts and circumstances, after considering the submissions of both sides, we set aside the Commissioner rsquo s order and allow this appeal. (Dictated and pronounced in open court)
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2008 (10) TMI 462
Cement - Exemption under N/N. 4/2006-C.E - Held that: - CBEC, which is to the effect that no RSP requires to be printed on the goods sold to ‘industrial/institutional consumers as defined under the rules framed under the Standards of Weights and Measures Act and that such goods would be covered under Sl. No. 1B or 1C of N/N. 4/2006-C.E. by virtue of the Second Proviso to the Explanation to Sl. No. 1C of the Notification as amended. The Board’s clarification squarely covers the case in favor of the assessee - the benefit of the Notification would be admissible to the assessee and the impugned demand is liable to be vacated - appeal allowed - decided in favor of appellant.
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2008 (10) TMI 460
Appeal to Commissioner (Appeals) - Power to remand ... ... ... ... ..... assing fresh order in accordance with law. The Apex Court decision in the case of MIL India Ltd., 2007 (210) E.L.T. 188 (S.C.) has clearly laid down the law, that the Commissioner (Appeals) cannot remand the matter back to the adjudicating authority in view of the amendment to the Section 35 of the Central Excise Act, 1944. In view of this, the impugned order, in both the appeals, is unsustainable and therefore set aside. The matter is remitted back to the Commissioner (Appeals), to reconsider the issue afresh and pass speaking order in the case, based, on the records available before him. 5. emsp At this juncture, ld. counsel submits that the lower authorities are pressing hard for execution of bank guarantee from the assessee and hence some time frame may be fixed. The learned Commissioner (Appeals) shall try to dispose off the matter within three months from the date of receipt of this order. Both appeals are disposed off accordingly. (Pronounced and dictated in the court)
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2008 (10) TMI 459
Waste and scrap - Dutiability ... ... ... ... ..... n manufactured and exigible to duty or worn-out capital goods are inputs. The original authority had found that these goods had arisen in a process of manufacture as new and distinct products different from the raw material (inputs/capital goods). This finding upheld in the impugned order cannot be held as correct. Dismantled machinery or worn-out inputs do not become manufactured goods. All the case law cited by the ld. Counsel support the finding that worn-out machinery or inputs cleared as scrap cannot be held as manufactured goods. Therefore, the demand of duty, interest and the penalty imposed on the appellants are not sustainable. A similar case relating to the same appellant for an earlier period was decided in its favour by this Tribunal vide Chemplast Sanmar Ltd. (supra). The Revenue has no case that this decision has been appealed against. In the circumstances, the impugned order is set aside and this appeal allowed. (Order dictated and pronounced in the open Court)
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2008 (10) TMI 458
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... the above CENVAT credit which was utilized. They seek waiver of pre-deposit and stay recovery in respect of this amount. 2. emsp After hearing the learned Consultant for the appellant and the learned SDR for the Revenue, we have found prima facie case against the impugned demand inasmuch as case law exists in favour of the appellant. One order cited by the learned Counsel is Stay Order No. 348/08, dt.1-5-2008 in Appeal No. E/68/08 in the case of M/s. Sun Pharmaceuticals Industries Ltd. v. CCE, Pondichery. In this order, Rule 17 of Central Excise Rules, 2002 was taken note of and it was held that it was not open to the Department to prohibit the EOU from availing CENVAT credit on the strength of Board rsquo s Circular No. 77/99-Cus., dt. 18-11-99 (which circular has been relied upon by the Commissioner in the present case as well). 3. emsp In the result, there will be waiver of pre-deposit and stay of recovery in respect of the adjudged dues. (Dictated and Pronounced in Court)
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2008 (10) TMI 457
Stay/Dispensation of pre-deposit - Area based exemption ... ... ... ... ..... epartment, states that the intimation regarding engagement of Special Counsel has been intimated very late to him and his Senior, Shri R.K. Chowdhury. However, considering the fact that these cases were adjourned three times and the issue involved in these two cases is similar to the one dealt with by us in respect of Ex. Appeal No. 98/08, for the same reasons as stated above, we waive the requirement of pre-deposit during pendency of these two appeals also. 6. emsp In view of the heavy amounts involved in all these three appeals, both sides undertake to approach the Committee constituted under the Notification to consider inspection of the factory premises of the appellants and issue a certificate regarding investment claimed to have been made by the appellants in respect of these three cases. Both sides are given liberty to approach the Tribunal for fixing a final date of hearing once the certificate of the Committee is available. (Dictated and pronounced in the open Court)
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2008 (10) TMI 456
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... other words, this issue has not been decided by the Hon rsquo ble Supreme Court on merits. 6. emsp Under these circumstances, since our prima facie view is in conflict with the decision of the Tribunal dated 16-2-2004 (supra), we refer the matter to the Larger Bench to decide the following issue ldquo Whether the charges towards pre-delivery inspection and after-sale-services received by dealers from buyers of the cars are to be included in the assessable value of cars in the light of the definition of lsquo transaction value rsquo given in Section 4(3)(d) of the Central Excise Act. rdquo 7. emsp As there is a decision in favour of the assessee relating to earlier period, we waive pre-deposit of dues as per the impugned order and stay recovery thereof till the disposal of the appeal. 8. emsp The matter may be placed by the Registry before the Hon rsquo ble President for constituting the Larger Bench. (Dictated and pronounced in the open Court on the 10th day of October, 2008)
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2008 (10) TMI 455
Cenvat/Modvat - removal of Capital goods after use - Held that: - the capital goods namely tools and dies were removed by the respondents after they had been used for some time - Rule 3(5) of CCR, 2004 did not apply to removals of worn-out capital goods. The respondents were not required to pay duty when the used capital goods were sold - appeal dismissed - decided against Revenue.
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2008 (10) TMI 454
Duty liability - Job work ... ... ... ... ..... respondents. Respondents had paid duty due on the refined vegetable oil during the material period. The Commissioner (Appeals) found that M/s. Balaji Oil Industries (P) Ltd. had manufactured refined vegetable oil and fatty acid and demand could not have been validly raised on the respondents. The Commissioner (Appeals) found no merit in the appeal filed by the Revenue canvassing its case in the Show Cause Notice for demanding duty due on fatty acid for the material period from the respondents. As the respondents had not manufactured refined oil or fatty acid, duty found to be due on fatty acid could not be demanded from the respondents for the reason that they had discharged duty on the refined vegetable oil manufactured by the job worker. On a careful consideration of the facts of the case I do not find any infirmity in the impugned orders passed by the Commissioner (Appeals). Accordingly the appeals filed by the Revenue are dismissed. (Dictated and pronounced in open court)
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2008 (10) TMI 452
Demand - Shortage of raw materials ... ... ... ... ..... one thing to say that input was short-received on account of loss of weight in transit. It is another thing to say that the records indicate shortage of quantity of input resulting from incorrect reading on weighbridges. The show-cause notice stated both these aspects alternatively and, that too, after conceding that there was no sale of the input as such from the factory or diversion from the factory. In other words, the department has never had a consistent case against the appellants. The benefit of doubt must go in favour of the assessee. 4. emsp In the cases cited by the learned counsel, negligible shortages of inputs were found and it was held that Modvat credit was not to be denied on this ground. 5. emsp In the result, we are of the considered view that the remand ordered by the Commissioner (Appeals) is a futile exercise. His order is set aside and the view taken by the original authority is sustained. The appeal gets allowed. (Dictated and pronounced in open court)
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2008 (10) TMI 450
Stay/Dispensation of pre-deposit - Quantum of pre-deposit - Financial hardship ... ... ... ... ..... ed that the written submission should be treated as application as per order passed by the Hon rsquo ble High Court. We find that the set of papers contains copy of written submissions, copy of Income-tax return etc. but we find that there is no application in respect of financial hardship. There is procedure laid down in the CEGAT (Procedure) Rules for filing an application. In the written submission, which the applicants wants to be considered as application, there is no verification as required under the CEGAT (Procedural) Rules. Therefore, we find no merit in the contention of the applicants that these written submission should be treated as application. As the appellants have not filed any application within three weeks as directed by the Hon rsquo ble High Court, nor they have complied with the condition of the stay order, hence, the appeals are dismissed for non-compliance to the provisions of Section 129E of the Customs Act. (Dictated and pronounced in the Open Court)
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2008 (10) TMI 449
Confiscation and penalty ... ... ... ... ..... ment of redemption fine. Learned advocate submits that after a period of 6 years, such option even if extended to them, would be of no relief, in as much as the fabric in question would have lost their value on account of deterioration. As such, he does not prays for converting absolute confiscation into an option for redemption of the goods, but submits that said factor should be taken into consideration while determining the quantum of penalty. 5. emsp In view of the foregoing, while holding that appellants are liable to penalty, we reduce the penalty from Rs. 10 lakhs to Rs. 2.5 lakhs (Rupees Two lakhs and fifty thousands only), keeping in view that the goods worth Rs. 15 lakhs stand fully confiscated by the impugned order and appellants have been deprived of the ownership of the same. 6. emsp Appeal is allowed in above terms. (Pronounced in Court on 6-10-2008) Note Text corrected as per Corrigenda Published in 2009 (241) E.L.T. 160 (7th September, 2009 - Vol. 241 Part 1)
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2008 (10) TMI 446
Appeal by Department - Limitation ... ... ... ... ..... E.L.T. 13 (S.C.) to support his contention that there is no promissory estoppel and also illegal private enrichment is not enforceable. He submits that the rejection of Condonation of delay not to will harm public interest and this will result in private enrichment. 3. emsp We have considered the submissions made by ld. SDR. We observed that the Revenue had filed another application for condonation of delay in filing appeal relating to refund claims of the same appellant and on the same issue wherein the order was passed on the same date. After detailed consideration, the Tribunal did not find merit in the application for condonation of delay and the same was rejected vide order No. A/1917/WZB/Ahd/2008, M/942/WZB/ Ahd/08 dated 12-9-2008 and we find no reason to differ with the decision taken in the above order. Relying upon the decision already taken, COD application filed by the Revenue is rejected and consequently the appeal is also rejected. (Pronounced in the open Court)
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2008 (10) TMI 445
DEEC licence - Marble - Import of marble - Board Circular No. 40/2002-Cus. dated 11-7-02 - Held that: - Having sent the sample to CRCL and having received the report which is in conflict with the report of Geological Survey of India, the refusal to permit retesting and refusal of cross-examination are not justified - appeal allowed.
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2008 (10) TMI 444
Rebate - Quantum of - Export of watches and clocks - N/N. 10/2003-C.E., dated 1-3-2003 - Held that: - Exemption N/N. 10/2003-C.E., dated 1-3-2003 is applicable in respect of watches and clocks of retail price not exceeding ₹ 500/- per piece. Even though export price of watches may be less than ₹ 500/- as observed by the Commissioner (Appeals) but not confirmed by the ld. Advocate during the hearing. Rupee is currency of India, retail price cannot be affixed on the export goods. Therefore, the exemption Notification cannot be applied to watches sold in other countries.
Since Indian Government has no control over sale price in respect of exported goods, it is clear that exemption notification is inapplicable to exported goods. Whether the appellants are encashing the Cenvat credit or not is not relevant, what is relevant is to be seen whether the contention of the Revenue is legally valid and correct - appeal allowed - decided in favor of appellant.
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2008 (10) TMI 443
... ...
... ... ..... ropped by the original authority and upheld by the Commissioner (Appeals). For the demand of duty prior to 1-4-2000, we find that the Commissioner (Appeals) has observed that the respondent had not availed Modvat credit on capital goods, which were received prior to 1994. We do no find any rebuttal of the above findings. The Hon rsquo ble Supreme Court in the case of CC v. Auto Ignition Ltd. reported in 2008 (226) E.L.T. 14 (S.C.) held that onus to prove that assessee had availed Modvat credit is on the Revenue. In the present case, it is seen that the respondents made a categorical submission that the capital goods were received prior to 1-9-94 which was not refuted by the Revenue. Therefore, demand of duty prior to 1-4-2000, was rightly set aside by Commissioner (Appeals). 7. emsp In view of the above discussion, we do not find any merit in the Revenue rsquo s appeal. Accordingly, the appeal filed by the Revenue is rejected. (Order dictated and pronounced in the open Court)
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