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Central Excise - Case Laws
Showing 81 to 100 of 192 Records
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2008 (12) TMI 534
Demand - Limitation - Extended period, invocation of ... ... ... ... ..... t considered as to whether the cylinder can be considered as an input. This aspect needs to be considered in detail. Therefore the matter has to go back to the Original Adjudicating Authority to consider whether cylinder can be considered as an input or it has to be treated as capital goods. More over even if it is considered as capital goods, at best the demand can be only for interest for the period during which excess 50 credit was availed and it cannot be for the full amount of Cenvat credit that has been taken. Even in respect of capital goods, the credit is available to the extent of 100 but in two financial years. Therefore there is a need to re-quantify the demand and it has to be limited only to the interest. For these two purposes, the matter has to be remanded back to the Original Adjudicating Authority with a direction that appellants shall be given an opportunity to present their case before a final decision is taken if they desire to do so. (Pronounced in Court)
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2008 (12) TMI 532
Appeal to Appellate Tribunal - Admission of appeal - Discretion ... ... ... ... ..... as an adjudicating authority. Since the order in the present case has been passed by the Commissioner as an adjudicating authority, the proviso to Section 35 B is not applicable and therefore the appeal is required to be admitted. 2. emsp Heard both sides. Considered the submissions. I find merit in the appellant rsquo s plea that proviso to Section 35B is in respect of orders referred to in clause (b), (c) and (d) of Section 35B and not to clause (a) and since the impugned order is passed by the Commissioner as an adjudicating authority, this proviso will not be applicable. In view of the same, the appeal is admitted. (Dictated in Court)
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2008 (12) TMI 531
Demand - Limitation - Penalty ... ... ... ... ..... ties imposed by the original authority in respect of both the demands, I find that such penalty can be imposed only in cases where duty due is determined pursuant to a Show Cause Notice invoking larger period is found sustainable. In the instant case, there is no evidence to substantiate the finding that the assessee had availed undue credit by fraud, collusion, willful mis-statement or suppression of facts etc. Moreover, in each of the Show Cause Notices basic to the proceedings that culminated in the orders impugned in Revenue rsquo s appeals No. E/339/06 and E/357/06, there was no proposal to penalize the assessee under Section 11AC of the Act. Therefore, the appeals filed by the revenue are devoid of merit. The appeal filed by the assessee No. E/436/06 and the cross objections filed in No. E/339/06 and No. E/357/06 are allowed. Appeals No. E/339/06 and No. E/357/06 filed by the Revenue are dismissed. (Operative part of the Order pronounced in the open Court on 19-12-2008)
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2008 (12) TMI 529
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... e Act. One of those decisions - Hindustan Petroleum Corporation Ltd. v. CCE, Visakhapatnam-I - 2005 (187) E.L.T. 479 (Tri.-Bang.) - was appealed against by the department and that appeal was dismissed vide 2006 (196) E.L.T. A72 (S.C.). Similar decisions of this Tribunal have also been cited by the learned counsel. A subsequent order of adjudication in favour of an oil marketing company on the same issue refers to Board rsquo s letter F. No. 6/21/2003-C.Ex. dated 14-2-2007, wherein the field formations of the department were directed to follow the above view. In this manner, the appellants have made out prima facie case against the impugned demand. Accordingly, we grant waiver of pre-deposit and stay of recovery in respect of the duty and penalty amounts. 2. emsp As rightly pointed out by both sides, this appeal involving high stakes should be disposed of as early as possible. Accordingly, we direct that the appeal be posted to 4-2-2009 for final hearing. (Pronounced in Court)
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2008 (12) TMI 528
Order of Appellate Tribunal - Modification of stay order ... ... ... ... ..... the portion of the said order which the Commissioner seeks to be deleted had recorded the submissions by the counsel appearing for the appellants in the concerned appeal. This portion does not contain any finding of the Tribunal except that the order had recorded that a Superintendent by name Shri Deivasigamani had been facing departmental proceedings. 3. emsp From the miscellaneous application we find that the Commissioner of Central Excise, Coimbatore has intimated that the said officer is not facing any departmental proceedings. As the Commissioner is the best person who would know whether one of his officers is facing any departmental proceedings or not, we accept the application as regards our observations forming part of the order against which the Commissioner has raised objection. Accordingly, we partly allow the miscellaneous application by deleting the last sentence of para 1 of our stay order. The application is disposed of. (Dictated and pronounced in open Court)
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2008 (12) TMI 527
Cenvat/Modvat - Inputs - Common input ... ... ... ... ..... that this Tribunal had decided an identical issue in the Final Order No. 1372/08 dated 3-12-08. Para 5 of the above decision is reproduced below ldquo I have carefully considered the rival submissions. The impugned order was passed by the Commissioner (Appeals) relying on several decisions of the Tribunal. There is no dispute that these decisions have not been stayed by a competent court. Another judgment namely the decision in Kirloskar Oil Engines Ltd., (supra) relied upon by the Revenue in support of the appeal had not dealt with eligibility to CENVAT credit of inputs intended to be used as fuel in terms of Rule 6(2) of CENVAT Credit Rules, 2002. The reliance by the Revenue on the ratio of this decision does not advance its case. In the circumstances the impugned order does not call for any interference. The appeal filed by the Revenue is dismissed rdquo . In view of the above judgment, the appeal filed by TNPL is allowed. (Order dictated and pronounced in the open Court)
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2008 (12) TMI 525
Stay/Dispensation of pre-deposit - Export Oriented Unit, 100% EOU ... ... ... ... ..... to some term of deposit. 6. emsp Thought the appellants have pleaded that they are going through financially hard period and their factory is closed, we find that no balance sheet or any other documentary evidence stand placed on record in support of the above plea. We also note that the suspension was on the basis of duty evasion of around Rs. 2.49 crores and even the goods involved in the present appeal also stand cleared by the appellant in the open market. Such clandestine removal would not form part of the statutory records so as to reflect upon the correct financial status of the appellant. By taking all the above factors into consideration, we direct the appellant/applicant to deposit 50 of the duty amount within a period of ten weeks from today and report compliance on 26-2-2009. Subject to deposit of the above amount, the pre-deposit of balance amount of duty and entire amount of penalties on both the applicants shall stand waived. (Dictated and Pronounced in Court)
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2008 (12) TMI 524
Demand - Limitation, longer period - Valuation - free supplied items along with regular box of medicines - Section 4A
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2008 (12) TMI 523
Refund - Amount deposited during investigations ... ... ... ... ..... M/s. Zen Tobacco Pvt. Ltd. against the above said amount of Central Excise duty, penalty and interest as per Sr. No. (i) to (iii), determined and confirmed under Section 11A(2) of the Central Excise Act, 1944. rdquo 2. emsp Ld. Advocate does not dispute that the deposits so made by them stand already appropriated by the Jt. Commissioner but submits that they are in the process of filing an appeal against the said order. It is observed that the appellants are required to deposit the dues in terms of Section 35F of the Act for the purposes of entertaining their appeal. As such, we do not find any infirmity in the appropriation of the already deposited amount. The appellant rsquo s claim for refund of the above amount is dependant upon the outcome of the appeal filed against the above order of the Jt. Commissioner. At this stage, we do not find any justifiable reason to order for refund of the already appropriated amount. The appeal is accordingly rejected. (Pronounced in Court)
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2008 (12) TMI 522
Remission of duty ... ... ... ... ..... e company is not replying to their communications. Adjudicating authority, after fixing personal hearings in the same month, proceeded to decide the matter on the ground that the same is very old and it would take some time for insurance company to recover the old records and the matter cannot be kept pending. 3. emsp At this stage, ld. Advocate has submitted a letter from the Oriental Insurance Co. Ltd., received under RTI Act, referring to their claim and reporting that no Central Excise duty element was a part of the assessment of their liability for loss of the final goods. Inasmuch as the said letter stands produced before us today, the same is required to be verified and examined in respect of the dispute in question. We accordingly set aside the impugned order and remand the matter to Commissioner for re-adjudication in the light of the above letter of the insurance company. Stay petition as also appeal get disposed of in above terms. (Dictated and Pronounced in Court)
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2008 (12) TMI 520
Valuation - Physician samples ... ... ... ... ..... of 115 of cost of production, shall apply. Accordingly, he has accepted the assessee rsquo s stand for refund of excess duty paid by them. 3. emsp The period involved in the present appeal is Nov. 2001 to Oct. 2002. The present circular issued by the Board covers the physician samples and lays down method of arriving at assessable value. As per the settled law, such circulars are binding upon the Revenue. As such, we find no infirmity in the view adopted by the Commissioner (Appeals) and reject the Revenue rsquo s appeal. (Pronounced in the Court)
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2008 (12) TMI 519
Stay/Dispensation of pre-deposit - Ship stores ... ... ... ... ..... an Navy should be held responsible and the appellants are actually not in a position to say as to how the Indian Navy would be using their goods. Further he stated that zinc ingots were used for manufacture of ldquo Sacrificial Anodes rdquo which in turn are used onboard ships to protect the hull surface from corrosion. 2. emsp The Revenue has taken the view that zinc ingots cannot be considered as ship stores. The learned DR referred to the Board rsquo s Circular No. 89/88-CX.6, dated 30-12-1988 on the issue. On going through the said Circular, we do not find that it is in favour of the Revenue. The ship stores include not only consumable stores but non-consumable items also. Prima facie, the appellants have strong case in their favour. In view of this position, we order full waiver of pre-deposit of the disputed amounts till the disposal of the appeal. The stay application is allowed. The appeal to come up for hearing in its turn. (Pronounced and dictated in the open court)
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2008 (12) TMI 518
Refund - TR-6 challan, non-availability of ... ... ... ... ..... s no dispute as to payment of impugned amount by the appellants or their eligibility to its refund. The refund claim was rejected on the sole ground that original copy of T.R. 6 challan was not available. As recently as in December 2005, the department appropriated the impugned amount. In the circumstances, the appellants rsquo suggestion that the refund may be allowed against an indemnity bond as ordered by the Tribunal in Zenith Ltd. case (supra) appears to be a practical and reasonable solution. The procedure acceptable to refund duty of customs can be more safely adopted to refund central excise duty as the central excise assessee operates from a regular place in the jurisdiction of a Range officer unlike an importer who may not file a second Bill of Entry. It is ordered that the refund claimed may be allowed to the appellants on their executing an indemnity bond as by the Tribunal in the Zenith case (supra). The appeal is allowed. (Pronounced in open court on 29-12-2008)
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2008 (12) TMI 517
Nylon Chips - Intermediate goods - Valuation ... ... ... ... ..... or the purpose of re-determining the value of the Nylon Chips captively consumed to the adjudicating authority. 3. emsp In the result, we hold that (a) Nylon Chips are dutiable (b) Duty liability is to be re-determined after arriving at the value of the Nylon Chips on the basis of costing method and (c) While demanding duty adjustment is to be given of the credit already reversed by the assessee and (d) The penalty is set aside in the light of the Tribunal rsquo s decision in the case of Shree Synthetics Ltd. v. Commissioner of Central Excise, Indore (supra). However, after finalization of demand of duty, it will be open to the adjudicating authority to decide whether penalty is liable to be imposed and if so, to what extent. Liability to interest under Section 11AB will be limited to the duty liability ultimately re-determined on re-computation. 4. emsp The appeal is disposed of in the above terms. (Dictated and pronounced in the open Court on the 29th day of December, 2008)
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2008 (12) TMI 515
Refund claim ... ... ... ... ..... erein (TNEB) in the absence of any of the following viz. GP.1s , T.R.6 challans, PLA register and RT-12 returns in original. He submits that TNEB was in possession of the PLA register in original which carried entries corresponding to the impugned payments. I have also heard the ld. SDR, who reiterates the findings in the impugned order. 2. emsp After considering the rival submissions, I find that the PLA register in original containing particulars of credit relating to the deposit of the amount is adequate proof of payment of the amount claimed. The refund claimed can be released to the appellants relying on this evidence. If felt necessary, the authorities can require TNEB to furnish an indemnity bond. The matter is remitted to the original authority for considering the appellants rsquo case afresh. Needless to say that the appellants shall be afforded an adequate opportunity for presenting their case. (Operative part of the order was pronounced in open Court on 19-12-2008)
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2008 (12) TMI 514
Clandestine removal - Misdeclaration ... ... ... ... ..... cannot be found by relying on a private file recovered from a clerk of the appellant firm. It is not clear if the production as per the private records was used in any statement given to the bank and if so for what purpose. These are not forthcoming from the orders of the lower authorities. The private record can be relied upon to the extent it matches the bank account statement. Demand has to be restricted to clandestine clearances including the admitted quantity of value Rs. 1,97,800/-. In the circumstances, the matter is remanded to the original authority to adjudicate the case afresh and to categorically find the quantity and value of the cotton yarn cleared in the guise of hank yarn and the clearances which attract duty liability being in excess of the exempted value of clearances under the SSI Notification. Needless to say that the appellants shall be allowed an effective hearing. The appeal is allowed by way of remand. (Order pronounced in the open Court on 19-12-2008)
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2008 (12) TMI 513
Confiscation - Excess stock - Molasses ... ... ... ... ..... h the sides. It has been pleaded by the respondent that the molasses was of being produced 86/87 brix while determining the quantity in quintals, the calibration chart of 90 brix has applied, but he could not produce any evidence as to whether the molasses being produced was of 86/87 brix. There is no document showing that molasses being produced was of 86/87 brix. Moreover, in the case of Ghatampur Sugar Co. Ltd. (supra) relied upon the respondent, the dip reading had been taken in the month of March when due to higher temperature, there could be foam formation, while in this case, the dip reading had been taken during winter, when there is little possibility for such foam formation. In view of these circumstances, I am of the view that the impugned order is not correct. The same is set aside and the redemption fine in lieu of confiscation and the penalty imposed in the order-in-original are restored. The Revenue rsquo s appeal is allowed. (Order dictated in the open Court)
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2008 (12) TMI 511
Remand - Office record of Department, non-production of ... ... ... ... ..... er rsquo s order which reads as follows ldquo I agree with AC (T) and ADC (T). Remission not allowed. Inform Div. AC rdquo . 3. emsp We are at a loss to understand why in spite of specific direction, the records of the Commissioner is not being produced before the Bench to ascertain as to whether the prayer of the appellants was duly considered by the Commissioner, whether the appellants were heard by the Commissioner and whether a speaking order was passed rejecting the Remission request. In the absence of the relevant records, we have to conclude that the concerned Commissioner has mechanically dealt with the request of the appellants without hearing them and without passing any speaking order. As such, we have no option but to set aside the impugned demand till the prayer for remission is decided by the Jurisdictional Commissioner after hearing the appellants followed by a speaking order. The appeal is allowed in the above terms. (Dictated and pronounced in the open Court)
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2008 (12) TMI 510
Demand - Shortage - Actual shortage ... ... ... ... ..... duty. In view of clear contradiction much credence cannot be given to statements. I have no option but to dismiss the appeal. rdquo 6. emsp The Revenue in their memo appeal has again referred to the statements. It is seen that the matter was earlier remanded by the Commissioner (Appeals) by allowing cross-examination of the Panchas and the buyers. Such cross-examination was conducted and statements were found to be not worthy of reliance. I also find favour in the reasoning of the Commissioner (Appeals) that if the goods against other lot numbers stand cleared by the appellant clandestinely, then why the same were not found to be short at the time of search of the factory. As such, I am of the view that restricting the demand to the goods actually found short is in accordance with the justice. No interference is called for in the impugned order of the Commissioner (Appeals). 7. emsp Accordingly, the appeal filed by the Revenue is rejected. (Pronounced in Court on 15-12-2008)
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2008 (12) TMI 509
Demand - Limitation ... ... ... ... ..... f the Revenue. The Commissioner (Appeals) himself observed that he found immense force in the contention of the appellant about time bar, but he has rejected it only on the ground that it has been raised belatedly. It has to be noted that the Assistant Commissioner had dropped the demand on the basis of Tribunal rsquo s decision and therefore the appellants were not required to raise the issue of time bar at all since their case was allowed on merit. Therefore, they were right in taking the issue of limitation. We find that issue had reached Tribunal regarding profit margin and therefore, it cannot be said that the department was not aware of the fact. We also note that the amount is so small and the matter was already under litigation. Therefore, the appellants were right in claiming that the show cause notice issued in 2003 for the year 1998 demand was barred by limitation. 3. emsp Therefore, we allow the appeal with consequential relief. (Pronounced in Court on 11-12-2008)
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