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Central Excise - Case Laws
Showing 41 to 60 of 192 Records
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2008 (12) TMI 587
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... ed had been used. The waste arises only in the course of manufacture of the final product. The appellant does not product waste intentionally. Even in the erstwhile Rule 57D of the Central Excise Rules, this factor was taken into account and there was a specific provision that no reversal was needed on account of the inputs contained in the waste. In any case, the Larger Bench decision cited by the appellant prima facie is in their favour. Further, the Cenvat Credit Rules themselves have been amended only with effect from 7-9-2007. The period of dispute in this case is from 18-8-2006 to 4-4-2007. In these circumstances, the appellants have prima facie a very strong case in their favour. Hence, we order complete waiver of the pre-deposit of the dues demanded in the impugned orders. No coercive action should be taken against the appellants to recover the amounts till the disposal of the appeals. Matter to come up for hearing on 20-3-2009. (Pronounced and dictated in open Court)
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2008 (12) TMI 586
... ...
... ... ..... ailable to the appellants as Cenvat credit. Reliance is placed on the following decision (1) CCE v. Textile Corpn, Marathwada Ltd., 2008 (231) E.L.T. 195 (S.C.) 6. emsp We have considered the various points urged by both the sides carefully. The only issue to be decided is whether the royalty charges are includible at the bulk stage. We find that the Central Excise authorities in Patiala and Sonepet had already decided the issue in party rsquo s favour by following the CAS-4. The Tribunal also in the decisions cited supra has clearly held that the principles enunciated in CAS 4 would be applicable even for the past cases. It is also seen that the royalty charges based on sales are already included in the price fixed for retail sales. To us entire exercise appears to be revenue neutral. We do not find any merit in the impugned order. Therefore we allow the appeals with consequential relief. (Operative portion of this Order was pronounced in open court on conclusion of hearing)
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2008 (12) TMI 585
Clandestine removal - Evidence - Held that: - Every case of clandestine removal is required to be looked into and examined on the basis of a evidence available in that particular case. In the present case it is not only the difference between the two records which is the basis for the confirmation but extensive investigations stand carried out by the Revenue which only pointed out to the fact of clandestine removal by the appellants
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2008 (12) TMI 584
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... by various firms, were inadmissible. 3. emsp We, at this stage, are of the prima facie view that the appellants have not been able to make a good case in their favour so as to allow the stay petition unconditionally. No efforts have been made by them to establish the identity of the suppliers of the inputs, for whom they have done the job work. If they were doing job work of particular supplier, he would be knowing the identity of said persons for whom he had worked. As such, we also note that the applicants have not taken any plea of financial hardship in his stay application nor have produced any evidence to that effect. We, accordingly, direct the applicant/appellant to deposit 20 of the duty amount within a period of 8 weeks from today, subject to which the pre-deposit of balance amount of duty and entire amount of penalty, imposed on both the applicants, shall stand waived. Matter to come up for ascertaining compliance on 18-2-2009. (Dictated and Pronounced in the Court)
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2008 (12) TMI 583
Clandestine removal - Proof ... ... ... ... ..... the officers and therefore the allegation of the clandestine removal is sustainable. 3. emsp We have considered the rival submissions. We find that as pointed out by the ld. Advocate absolutely no corroborative evidence has been put forth by the Revenue. We also find that in order-in-original, Commissioner has not at all considered the points put forth by the appellants even though he had reproduced the submissions in his order. He has also not commented upon the technical opinion of the Chartered Engineer submitted by the appellants. In view of the fact that other than the statement of authorized signatory, no other evidence is available and also in view of the fact that appellants have produced technical opinion to show that the Static Oil gets removed during the process of dying/twisting, we find that the impugned order cannot be sustained. Accordingly, we set aside the impugned order and allow the appeals with consequential relief to the appellants. (Pronounced in Court)
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2008 (12) TMI 582
Demand - Limitation - Suppression ... ... ... ... ..... film fall on the paper at the point of chilled nip and is laminated with the paper and goes to rewinder side. Finally this laminates are slit to required size on the slitter machine. 4. emsp From the above it is noticed that as contended by the ld. SDR, the declaration gives the weight of papers and LDPE granules per Ton. However, we do not think that this is sufficient to invoke suppression of facts. The manufacturing process has been correctly indicated and it cannot be said that there was a deliberate intention in indicating the quantity of raw materials used per Ton of the finished products. Nothing has been hidden from the Revenue and the report of the Chemical Examiner which was obtained in 2000 could as well have been obtained as soon as the classification declaration was filed. In view of the above, we feel that Revenue has not been able to justify to invocation of extended period under Section 11A and therefore we allow the appeal on limitation. (Pronounced in Court)
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2008 (12) TMI 581
Refund - Unjust enrichment - Incidence of duty ... ... ... ... ..... e Appellants in respect of which the credit taken by them has been reversed. The reversal of credit by itself does not prove that the Appellants have not passed on the incidence of extra duty. Since the goods have been taken for internal consumption, the Appellants are required to demonstrate that they have not passed on the incidence of duty as a part of the price for the finished goods manufactured by them. Shri Dhar states that the other portion of the claim relates to goods sold in auction. He states that for such goods, the Appellants have not charged any excise duty separately. Here again not charging excise duty separately does not demonstrate that they have not passed on the extra duty burden as a part of the auction price for the impugned goods auctioned by them. Hence the arguments advanced in respect of both kinds of goods does not help the case of the Appellants. As a result, the Appeal is dismissed as not substantiated. (Pronounced and dictated in the open court)
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2008 (12) TMI 579
Refund - Limitation ... ... ... ... ..... 7 (S.C.) has held that when the duty has been paid under protest, the period of limitation would start to run from the date of the final decision in the assessee rsquo s own case. In this case, even, if the payment of duty by the Respondent is treated as under protest, for the reason that they had challenged the Deputy Commissioner rsquo s order before Commissioner (Appeal), the dispute stands decided once the Commissioner (Appeal) decided issue in their favour vide order dated 7-5-04. In view of this, the relevant date for counting the limitation period of one year for the purpose of filing refund application under Section 11B would be the date of Commissioner (Appeal) rsquo s order i.e. 7-5-04 and since in this case, the application has been filed after expiry of the limitation period, the same would be time barred. In view of this, the impugned order is not sustainable and the same is set aside. The Revenue rsquo s appeal is allowed. (Dictated and pronounced in open court)
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2008 (12) TMI 577
Demand - Non-accountal of goods ... ... ... ... ..... payment of duty. The demand was confirmed under Rule 9(2) of Central Excise Rules. The matter reached the Tribunal and after considering submissions of the appellant the demand under Rule 9(2) was set aside and liberty was given to the Revenue to enforce the Bond. After the order issued by the Tribunal, the department has simply enforced the bonds and bank guarantees available with them and also adjusted the amount of refund due to them. The appellants have submitted that in absence of details of the bond, they are not aware as to which were the bonds enforced by the department. It is also their submission that in spite of their efforts, they could not find bonds executed by them to the extent of amount of Rs. 18,06,554/- payable to the department. We find considerable force in the arguments advanced by the appellant and therefore direct the original adjudicating authority that he should give the details of bonds enforced to the appellants. (Pronounced in Court on 15-12-2008)
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2008 (12) TMI 576
Demand - Limitation - Extended period, invocation of - Suppression of facts ... ... ... ... ..... 05 (190) E.L.T. 301 (Tri.-LB) holding that fabrication of such items amounts to manufacture and the resultant goods fall for classification under Heading 73.08 of the First Schedule to the CETA, 1985. However, we find that this appeal can be disposed of without going into the question as to whether the activity undertaken by the assessees amount to manufacture for the reason that the demand covering the period 1993-94 has been raised in the show-cause notice of January, 1997 and in the light of the different interpretations of the Tribunal including the decision of Elecon Engineering cited supra rendered in 1999 that such activity did not amount to manufacture, the assessees cannot be held to be guilty of suppression of facts with intention to evade payment of duty. We, therefore, accept the contention of the respondents/assessees that the demand is barred by limitation and, therefore, reject the appeal of the department on this ground. (Dictated and pronounced in open court)
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2008 (12) TMI 575
Interest - Cenvat/Modvat - Wrong availment of credit ... ... ... ... ..... hosen not to impose any penalty for the said period. However, in respect of the balance amount of credit, interest is required to be paid as after the amendment of Section 11AB, no mens rea is required to be established for the purpose of charging interest. Interest is liable to be paid both for amount voluntary paid or specifically determined by the Assistant Commissioner. Similarly, in respect of the goods cleared for export, for which no proof of exported has been submitted, duty as well as interest is required to be paid, but no penalty can be imposed on manufacturer for default of merchant exporter under whose bonds the goods were exported. 5. emsp In view of the above, the appeal is partly allowed holding that interest is to be paid only on amount of Rs. 1,38,769/- relating to duty and Rs. 47,796/- to Cenvat credit reversed after the amendment of Section 11AB. In the circumstances of the case, no penalty is required to be imposed. (Dictated and pronounced in open court)
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2008 (12) TMI 574
Export Oriented Unit, 100% EOU - Air conditioners ... ... ... ... ..... reated as Capital Goods and allowed duty free clearance under the relevant notifications issued in this regard. 4. It has been decided by the Board that the instructions contained in aforesaid Customs Circular should be applied, mutatis mutandis, to Notification No. 1/95-C.E., dated 4-1-1995. Accordingly, Board rsquo s letter of even no. dated 26-8-1996 is modified to this extent. 7.1 emsp We also find that in another assessee rsquo s case, the learned Commissioner (A) vide his Order-in-Appeal No. 192/97 dated 28-5-1997 had granted the relief, which is not appealed against. In view of this settled position of the law, we find that the impugned order, which has upheld the Adjudicating Authority rsquo s order and rejected the department rsquo s appeal, is correct, legal and proper. 7.2 emsp Accordingly, the impugned order is upheld as no interference is called for and the appeal is rejected. (Operative portion of this Order was pronounced in open court on conclusion of hearing)
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2008 (12) TMI 573
Demand - Limitation - Suppression - Penalty and interest ... ... ... ... ..... when argued before the Original Authority. 6. emsp In view of the foregoing, we set aside the impugned Order and remand the matter to the Original Authority with the following directions - (a) The penalty and interest shall be re-calculated taking into consideration the duty amount for the period from 28-9-96 (the date on which Sections 11AC and 11AB were introduced into statute) till 6-8-97 since the proper declaration was given only on 7-8-97 regarding the impugned Cotton Fabrics calendered without the grooved rollers. (b) The prayer made for adjustment of the duty paid on the Cotton Yarn shall be examined with reference to the legal provisions in force at the material time. (c) The Appellant Assessee shall be given a reasonable opportunity of hearing before passing a fresh Order. 7. emsp Both the Appeals are partly allowed by way of remand. The Cross- Objection No. 19/06 filed by the Respondent Assessee also stands disposed off. (Pronounced and dictated in the open court)
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2008 (12) TMI 572
Appeal to Appellate Tribunal ... ... ... ... ..... fee is required to be paid if no duty stand confirmed and the disputed issue is of refund claim. 3. emsp However, we find that the Division Bench of the Tribunal in case of M/s E-Biz.Com. Pvt. Ltd. v. CCE Noida vide Misc. Order No. 239/2008 SM(BR), dt. 3-9-08 2008 (12) S.T.R. 438 (Tribunal) has held that minimum of Rs. 1,000/-, prescribed as a fee by Statute, is required to be paid. 4. emsp We, accordingly, direct the applicant-appellant to pay an additional fee of Rs. 800/- (Rs. Eight Hundred only) on or before 05-01-2009, when the matter would be listed for ascertaining compliance with the above direction. (Dictated and Pronounced in Court)
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2008 (12) TMI 571
Refund - Limitation ... ... ... ... ..... (Appeals) restored the appeal from the call book and directed refund of the balance amount of Rs. 10,39,008/- relying upon the Board rsquo s Circular dated 2-1-2002. Hence this appeal by the Revenue on the ground that the amount paid cannot be treated as predeposit as it was paid as duty during 1994 i.e. even during the investigation stage and prior to the issue of the show-cause notice, and therefore the claim was barred by limitation. 2. emsp We have heard both sides. We find that the amount deposited as duty prior to the issue of the show-cause notice is also a predeposit and it is only after the final order of the Tribunal was passed on 22-1-2002 that the claim could be considered. Therefore, it is not correct on the part of the Revenue to contend that the claim is barred by limitation. We therefore see no legal infirmity in the impugned order and accordingly uphold the same and reject the appeal. (Operative portion of the order was pronounced in open court on 11-12-2008)
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2008 (12) TMI 570
Order - Remand order ... ... ... ... ..... red in law while not considering the decision of the Honorable Supreme Court in the case of Zunjarrao Bhikaji Nagarkar v. Union of India - 1999 (112) E.L.T. 772 (S.C.) that it is not the intent of law to provide protection and shelter to those assessees who first indulge in duty evasion by clandestine removal and thereafter seek to deposit duty by accepting liability. 4. emsp In view of the above, the Final Order No. 939/2006 dated 18-5-2006 passed by the CESTAT, Bangalore is not legal and proper and therefore, the Tribunal rsquo s Order needs to be set aside and penalty under Rule 173Q of Central Excise Rules, 1944 as envisaged in the Show Cause Notice needs to be imposed. rdquo Since the question of payment of interest was neither before the Tribunal nor in the grounds of appeal of the revenue before the Hon rsquo ble High Court, we are of the view that no further action is necessary in the matter. Revenue rsquo s appeal is dismissed. (Pronounced and dictated in open Court)
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2008 (12) TMI 569
Clandestine removal - Raw material found short - Demand and penalty ... ... ... ... ..... ase of R.P.G. Cables Ltd. v. Commissioner of Central Excise as reported in 2003 (157) E.L.T. 273 cited by ld. DR is on different footing as in that case the assessee could not furnish any possible reason for the shortages and the raw material was written off. 6. emsp As regards the finished goods, since ld. Advocate is unable to state whether the shortages were found in the packed goods or tank. I find no reason atleast packed commodity to be found short. Therefore demand of duty in respect of finished goods is upheld which has already been paid by them. However, there is no cause for imposition of penalty as the duty has been paid immediately on their own detection without being asked by Revenue to do so. In nutshell the appeal is partly allowed by holding that no duty is payable on the raw material found short and the entire penalty imposed is set aside. As regards demand of duty in respect of finished goods, I uphold the order of Commissioner (Appeals). (Dictated in Court)
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2008 (12) TMI 568
Cenvat/Modvat ... ... ... ... ..... ling of medicines were not as used in the manufacture of finished goods, Cenvat credit in respect of the same has been correctly denied. 3. emsp I have carefully considered the submissions of ld. DR and have perused the grounds of appeal and other records. The point of dispute is in this case is as to whether Cenvat credit of duty paid on the glass bottles, which got broken in course of packing of medicines in those bottles, would be available to the respondents. From the facts narrated in the Order-in-Original and also in order-in-appeal passed by the Commissioner of Central Excise (Appeals), it is clear that the bottles were broken in course of manufacturing process in the process of filling of medicines in the bottles and, therefore, it cannot be said that broken bottles were not used in or in relation to the manufacture of medicines. In view of this, I find no infirmity in the impugned order. The Revenue rsquo s appeal is dismissed. (Dictated and pronounced in open Court)
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2008 (12) TMI 567
Penalty - Intent to evade - Held that: - it has not been established that the appellants violated deliberately the Central Excise provisions with an intention to evade Central Excise duty - Moreover, when we go through Rule 25, it is seen that the contravention of any provisions of the Rules or Notifications should be with an intent to evade duty, so as to attract penalty under the said Rule 25. In the circumstance of the case, we are satisfied that no penalty is called for in terms of Rule 25. Moreover, the appellant is a public sector undertaking contributing huge money to the exchequer. These factors are to be taken into consideration while imposing penalty, in view of the above observations, we set aside the penalty and allow the appeal.
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2008 (12) TMI 566
Review - Maintainability of - Cenvat/Modvat ... ... ... ... ..... if directions were issued to a wrong officer, appeal may not be maintainable. Therefore, the preliminary objection raised by the learned CA fails. 6. emsp As regards the learned CA rsquo s arguments that just because parts have to be machined before putting into use, the Modvat credit does not become inadmissible, we have to agree with the learned CA and we also find that the decisions cited by the learned CA are relevant and applicable. Similarly irrespective to the chapter heading under which components, spares and accessories fall, the credit would be admissible if the machines or equipment of which the same are parts/spares/components or accessories are eligible. As pointed out by the learned CA, the decision of the Larger Bench in the case of Union Carbide Ltd. (supra) covers their case. On the same analogy, the items of third category are also eligible. 7. emsp In the result, on merits, the appeals filed by the appellants are allowed. (Pronounced in Court on 11-12-2008)
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