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Central Excise - Case Laws
Showing 61 to 80 of 192 Records
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2008 (12) TMI 564
Stay/Dispensation of pre-deposit - Excisability ... ... ... ... ..... ceived and marketable before dismantling into component parts. Referring to the two purchase orders, he submits that the sub-assemblies valued Rs. 77.3 lakhs and 165 lakhs has already suffered duty. The Commissioner by his impugned order duty has demanded on entire value including Rs. 33 lakhs towards erection and commissioning charges. He relied on several judgments to support their claim that what was assembled as immovable property is not subjected to Excise duty. Duty suffered on the sub-assemblies has also not been abated by granting credit. 4. emsp After carefully considering the submissions and perusing the records, we are of the view that the what was assembled may not be considered as movable and hence may not be goods and therefore applicant has made out a, prima facie, case for waiver of dues as per the impugned order. We accordingly, waive the pre-deposit of dues and stay recovery thereof till the disposal of the appeal. (Dictated and Pronounced in the open Court)
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2008 (12) TMI 563
Cenvat/Modvat - Inputs received on stock transfer basis - Held that: - it cannot be concluded that the inputs or capital goods have to be acquired by a manufacture only by purchase, for taking the Cenvat credit. There is no such condition in Rule 57AB of Central Excise Rules, 1944 and corresponding provisions of Cenvat Credit Rules 2001/2002 - appeal dismissed - decided against Revenue.
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2008 (12) TMI 562
Cement - Exemption under Notification No. 4/2006-C.E. - Held that: - the very same issue as in the present case came up for decision in the Tribunal in the case of M/s. Grasim Industries Ltd. v. CCE, Trichy [2008 (10) TMI 462 - CESTAT, CHENNAI], holding that the goods in question would be covered under Sl. No. 1B or 1C of Notification No. 4/2006-C.E. by virtue of the Second Proviso to the Explanation to Sl. No. 1C - benefit allowed - appeal allowed.
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2008 (12) TMI 561
Demand - Returned goods - Non-following of procedure ... ... ... ... ..... under Rule 173H and that the appellant has undertaken certain repairs. It was also submitted by the appellant that while undertaking the repairs, whenever certain components were replaced duty on such components have been paid by the appellant. We also note that the difficulty of the appellant who is manufacturing heavy electrical equipment in following the provisions of Rule 173H appears to have been noted by the Commissionerate from 1992 onwards and relaxation has been permitted. The infraction, if any, in following the procedure, cannot lead to a conclusion that the goods which are cleared as repaired goods were actually freshly manufactured goods and cleared under the garb of goods received under Rule 173H. No such allegations or findings have been made. Under these circumstances we are not in a position to uphold the demand. 7. emsp We set aside the order of the lower authorities and allow the appeal with consequential relief. (Dictated and pronounced in the Open Court)
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2008 (12) TMI 560
Interest - Cenvat/Modvat - Irregular availment ... ... ... ... ..... rely passed the credit in the books. 4. emsp Revenue is aggrieved over the impugned order of the Commissioner on the ground that the demand of interest is mandatory under Section 11AB read with Rule 14 of Central Excise Rules, 2004 especially when the Commissioner (Appeals) had given a finding that the assessee had taken Cenvat credit wrongly. 5. emsp It is seen from the written submission of the respondent that they had appealed against the Order-in-Appeal. According to the respondent, the order of the Commissioner (Appeals) is legal and proper. I find that the Commissioner (Appeals) has set aside the demand of interest on the ground that there was merely a book entry of taking credit and the same had been reversed. There is no allegation that the respondents utilized the credit. In such circumstances, his order setting aside the demand of interest is legal and proper. There is no merit in Revenue rsquo s appeal, the same is dismissed. (Pronounced and dictated in open Court)
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2008 (12) TMI 559
Demand - Short receipt of goods in SEZ ... ... ... ... ..... ire consignment has not reached the appellant rsquo s factory. Appellants have produced on record, the technical literature of the bars by British Standard wherein the weight of the individual bars are given subject to tolerance limit. The tolerance limit of the bar of 12 mm and over shows the same to be plusmn 4.5. The variation in the present consignment is within the same tolerance limit. We also note that the entire operation was monitored by the surveyor and no discrepancy was found by him. As such, we find no reason to hold that the goods were less received by the appellant holding it liable to pay the duty especially when there is no dispute about the number of bundles received by the appellant and keeping in view the nature of the goods being solid bars, making it impractical for the assessee to remove a part of the same. 8. emsp In view of the above, we set aside the impugned order and allow the appeal with consequential relief to the appellant. (Pronounced in Court)
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2008 (12) TMI 558
Refund of pre-deposit - Section 35F of Central Excise Act, 1944 - principles of unjust enrichment - Section 11A(2B) of Central Excise Act, 1944
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2008 (12) TMI 556
Valuation - Captive consumption ... ... ... ... ..... related issue be settled at this stage. 7. emsp After considering the facts and circumstances of the case, we are of the considered view that there must be an open remand of the case inasmuch as the Commissioner did not consider basic records such as cost verification report for determining duty liability and the question of payment of interest would arise only in the event of any duty liability being fixed. Correct quantification of duty is being remanded to the learned Commissioner. All the accompanying issues will also be dealt with by him while quantifying the duty on the basis of the aforesaid report of the Dy. Director (Cost). 8. emsp In the result, we set aside the impugned order and allow this appeal by way of remand directing the learned Commissioner to re-quantify the duty for the period of dispute in the mariner prescribed hereinabove and to decide on connected issues, of course, after giving the assessee a reasonable opportunity of being heard. (Dictated in Court)
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2008 (12) TMI 553
Railway line sleeper slabs - exemption under N/N. 6/2000 dated 1-3-2000 - Held that: - just because the goods were manufactured near one bridge and supplied for use in the other bridges which are part of the same railway line does not disentitle appellants for exemption - The only requirement is that the goods must have been manufactured at the site for use. Once this condition is fulfilled, the appellants are eligible for the exemption - appeal allowed.
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2008 (12) TMI 551
Stay/Dispensation of pre-deposit - Manufacture ... ... ... ... ..... with the second container and without second container. We are not able to find whether any market survey was conducted to prove that the marketing of goods by the Appellant without being put in second container was impossible and whether goods were sold at the counter without second packing. Prima facie in absence of basic enquiry done by Authorities below we fail to appreciate that invoking of chapter note aforesaid was unwarranted and also observing that the order of adjudication has ignored the pleadings of the appellant made before the Authority below the order of the adjudication is non-speaking. When such a legal infirmity appears from the order, prima facie, we are of the view that the appellant may not be insisted for pre-deposit during pendency of the appeal to serve interest of justice. Therefore, we direct that there shall be no recovery of the demand raised by the impugned order during the pendency of the appeal. (Order dictated and pronounced in the open Court)
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2008 (12) TMI 550
Cenvat/Modvat - Documents for taking credit ... ... ... ... ..... d. The receipt of the goods at Bangalore is not disputed. The duty deposit is also not in dispute. Secondly, by law, the assessee is entitled for the credit. The invoices could not have been issued at the time of clearance in the circumstances of the case. The reason is that at the time of clearance, the assessee was under the bona fide belief that the goods would not be assessed. Therefore, even if the documents are not in accordance with the Cenvat Credit Rules, this should be treated as only a technical lapse. For such breach, substantial credit cannot be denied. Therefore, we allow the appeal of the party with consequential relief. However, they would not be entitled for any relief at Delhi. Copies of this order may be sent to the jurisdictional authorities at Delhi. Revenue rsquo s appeal 8. emsp As the party rsquo s appeal has been allowed, we do not find any merit in the grounds of appeal by Revenue. Hence, the same is dismissed. (Pronounced and dictated in open Court)
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2008 (12) TMI 548
Appeal to Appellate Tribunal - Repeated adjournments ... ... ... ... ..... into the factual aspects detailed above. There is a duty demand running into crores of rupees with penalty of that magnitude. The appeal was filed on 3rd September 2004. Stay order was passed on 19-10-2004. The appellant has been availing interim relief with the pre-deposit amount of Rs. 10,00,000/- (Rupees Ten Lakhs only). The appellant failed to cooperate for expeditious disposal of appeal when lenient consideration was made during disposal of the stay application directing above amount to be deposited. Therefore the appellants for their dilatory tactics do not deserve any further consideration for adjourning the matter which shall cause blockage of huge Revenue. In view of the tendency of the appellant as above noticed from record, we have no other alternative than to dismiss these two appeals for the abuse of process of law and for non prosecution of the appeal by the Appellants. 6. emsp In the result both the appeals are dismissed. (Dictated and pronounced in open court)
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2008 (12) TMI 547
Valuation - Free gifts - Demand - Limitation - Suppression ... ... ... ... ..... this was an item of expense, and was required to be packed by the job worker, he should have disclosed this activity in his declaration being an element of expense and therefore non-declaration of such activity amounts to suppression and accordingly extended period was invocable. 8. emsp In view of this we uphold the order of the Commissioner (Appeals) demanding duty with interest. As regards penalty, we are convinced with the plea taken in the revenue rsquo s appeal that penalty under Sec. 11AC is mandatory penalty which is equivalent to the duty evaded which as per the Supreme Court decision in the case of M/s. Dharamendra Textile Processors (cited supra) cannot be reduced. We therefore modify the order of the Commissioner (Appeals) by enhancing the penalty from Rs. 5 lakhs to Rs. 19,81,961/-. 9. emsp In a nutshell, the appeal filed by the assessee (Appeal No. E/1930/03) is rejected and appeal filed by the Revenue (Appeal No. E/246/03) is allowed. (Pronounced on 2-12-2008)
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2008 (12) TMI 546
Cenvat/Modvat credit - Capital goods - tippers - Held that: - the tippers are squarely covered by the definition of capital goods - reliance was placed on the decision of this Bench in the case of India Cements Ltd. v. Commissioner of CE, Hyderabad-III [2004 (11) TMI 155 - CESTAT, BANGALORE] wherein credit was allowed in the case of bulldozer - appeal allowed.
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2008 (12) TMI 545
Refund - Limitation ... ... ... ... ..... y finally assessed and if the duty, provisionally assessed falls short of or is in excess of the duty finally assessed, the assessee shall pay the deficiency or be entitled to a refund, as the case may be. rdquo In this case provisional assessment was finalized on 11-1-1999. Therefore, as observed by the Tribunal in Sriram Pistons and Rings case ldquo The above Rule envisages an order of refund to follow finalization of the provisional assessment without the assessee making a claim for refund rdquo . 5. emsp Therefore, if the officer finalizing the assessment were to follow the law as it existed, he had to sanction the refund and pay the same after passing order of finalization of provisional assessment. Therefore date of filing of the claim is not relevant and the refund should have been made suo motu. Hence, order passed by Commissioner (Appeals) has to be upheld. In view of this discussion, the appeal filed by the Revenue is rejected. (Pronounced in the Court on 1-12-2008)
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2008 (12) TMI 544
Appellate Tribunal - Powers of - Rectification of mistake ... ... ... ... ..... ginal or show cause notice the dispute remains whether item is plain or modified starch, objective is to arrive at a correct conclusion based on available records and evidence without stepping out of the four corners of judicial precedents and the legal provisions which is what has been done in the order. 8. emsp The ld. SDR cited the decision of Hon rsquo ble Supreme Court in Deva Metal Powders (P) Ltd. reported in 2008 (221) E.L.T. 16 (S.C.) 2008 (9) S.T.R. 113 (S.C.) to submit that there are no mistakes apparent on the face of records. Even though we also felt the same initially, but it was felt that it is necessary to consider the rationale behind the order and examine whether there was a failure to act as per the statutory principles. Hence, we have chosen to give a detailed decision. 9. emsp We find no errors apparent on record to be rectified and accordingly Rectification of Mistake application filed by the appellants is rejected. (Pronounced in the Court on 1-12-2008)
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2008 (12) TMI 542
Stay/Dispensation of pre-deposit - Fibre door frame and shutter ... ... ... ... ..... d 10-8-1988 wherein guidelines are given for classification of such composite articles. 3. emsp The learned SDR strongly supported the impugned order. He said that the point to be examined is how these articles are known in the market. He requested the Bench to put the appellants to terms. 4. emsp On a very careful consideration of the issue, we find that prima facie the appellants have a strong case on merits. Moreover, they had already deposited a sum of Rs. 10 lakhs. In these circumstances, this is a fit case for waiver of the pre-deposit of the balance amounts of duty/interest/penalties. Consequently, we order full waiver of the dues demanded including penalties on the Directors. No coercive measures should be taken by the Revenue till the appeals are disposed of. Stay applications allowed. Appeals to come up for final hearing on 18th February, 2009. Registry to link these appeals with appeal No. E/812/2007 for hearing on 18-2-2009. (Pronounced and dictated in open Court)
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2008 (12) TMI 539
Order of Commissioner (Appeals) - Maintainability - Jurisdiction ... ... ... ... ..... ssioner (Appeals) who, at the relevant time, did not have jurisdiction. It is contended by the Revenue that at the relevant time, another Commissioner (Appeals) had taken over. This is not disputed by the learned Counsel for the respondents. Hence, we hold that the impugned order is not maintainable for want of jurisdiction. The same is remanded to the jurisdictional Commissioner (Appeals). Thus, the appeal is allowed by way of remand to the jurisdictional Commissioner (Appeals). (Pronounced and dictated in open Court)
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2008 (12) TMI 536
... ...
... ... ..... rmed by the Hon rsquo ble Supreme Court, reported in 1999 (112) E.L.T. 353, when the appeals filed by the Revenue is dismissed. Surprisingly, even though the above decisions were brought to the notice of the Commissioner (Appeals), he has not adverted to the same and simply concluded that the availment of modvat credit is an additional consideration and is liable to be included in the assessable value. We, accordingly, set aside the impugned order and remand the matter to Commissioner (Appeals) for fresh decision in the light of above declaration of law by the Hon rsquo ble Supreme Court. Stay petition as also the appeal gets disposed off. (Dictated and Pronounced in the Court)
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2008 (12) TMI 535
Stay - Vacation of stay - Refund of Education Cess ... ... ... ... ..... has been dismissed as seen from 2008 (231) E.L.T. 416 (J and K) 2008 (87) RLT 460 (J and K). 3. emsp On hearing both sides, we note that no case for vacation of stay has been made out as we find that in the case of Indo Farm Tractors and Motors Ltd. v. Union of India, 2008 (222) E.L.T. 184 (H.P.), the Hon rsquo ble High Court has held that exemption from excise duty cannot be extended to payment of cess, and in a series of applications filed by the Revenue, which were listed today, stay has been granted to the Revenue, and accordingly we reject the application. 4. emsp The appeal is listed for regular hearing along with connected appeals on 28-1-2009. (Dictated and pronounced in the open Court on 29th day of December, 2008)
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