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Central Excise - Case Laws
Showing 101 to 120 of 326 Records
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2008 (7) TMI 725 - CESTAT, CHENNAI
Cenvat/Modvat ... ... ... ... ..... Order No. 465/08 dated 9-5-08 passed by the Bench in the case of M/s. Sri Balaji Industries v. Commissioner 2008 (228) E.L.T. 37 (Tri.) involving a case of similar facts wherein a similar demand was set aside. In that decision, this Bench had followed as many as seven earlier decisions of the Tribunal which had accepted the argument that the demand to recover credit availed by a manufacturer properly in accordance with invoices covering the inputs cannot be made as long as the assessment under the relevant invoices was not revised. In the decision cited by the counsel, we had observed that settled law on the point was that CENVAT credit of the duty paid by the input manufacturer/supplier, evidenced by the relevant invoices was admissible to a manufacturer of final product. In view of the above legal position, we set aside the impugned orders and allow the appeals filed by the parties. The early hearing applications also get disposed of. (Dictated and pronounced in open Court)
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2008 (7) TMI 724 - CESTAT, KOLKATA
Stay/Dispensation of pre-deposit ... ... ... ... ..... leviable and consequently no refund can be allowed. It is the case of the appellants that the amount of duty paid by them in any case is refundable to them even it is held that the impugned goods are not manufactured product. 3. emsp We find prima facie substance in the arguments advanced by the appellants and hence on the ground that the appellants are entitled to the refund of the entire amount in any case, the requirement of pre-deposit is waived till pendency of the appeal. (Dictated and pronounced in the open Court)
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2008 (7) TMI 722 - CESTAT, KOLKATA
Cenvat/Modvat - Documents for availing credit - Penalty - Held that: - the special nature of the goods obtained through courier imports and also considering the fact that the photocopy of the computer generated bill of entry is attested by the customs appraising official, it is felt that the Appellants as a special case should be allowed duty credit subject to proof of utilization of the impugned goods as well as the fact of direct import by the Appellants to the satisfaction of the jurisdictional officers - matter is remanded to the original Authority, before whom the Appellants shall produce necessary proof regarding duty payment and utilization of the impugned goods, who shall after proper verification allow them the credit.
As regards the penalty, in view of the fact that the Appellants have taken the credit initially without applying to the proper officer for availing credit in respect of the impugned attested photocopy of the bill of entry, I am of the view that some penalty is justified.
Appeal allowed in part and part matter on remand.
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2008 (7) TMI 721 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - SSI exemption ... ... ... ... ..... ely to defeat the very purpose of the condition. In this view of the matter, prima facie, we have not found strong case for the brother against the demand of duty on the goods cleared from the factory in excess of the prescribed exemption limit during 2005-06. The brother, in his application, has pleaded financial hardships and has also stated that, during the above period, he had a credit of over Rs. 5 lakhs. It is submitted that he has incurred accumulated loss of over Rs. 1 lakh as on 31-3-2008 as per the lsquo profit and loss account rsquo produced by him. Taking into account these aspects, we direct the assessee to pre-deposit an amount of Rs. 2 lakhs (Rupees Two Lakhs only) within 8 weeks. Report compliance on 19-9-2008. In the event of due compliance, there will be waiver of pre-deposit and stay of recovery in respect of the penalties imposed on both the appellants as well as the balance amount of duty demanded from the assessee. (Dictated and pronounced in open Court)
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2008 (7) TMI 720 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Excisability ... ... ... ... ..... basis, Shot Blasting (At outside party on job work basis, macr 100 Inspection and Counting Packing Despatch of Packed and Inspected goods 4. emsp It can be noticed from the above reproduced portion that the question whether the applicant has manufactured the product is of prime importance. It can also be seen from the above, that the applicant, has only suffixed brand name on the goods which he has purchased from the market and got the job work done on them. Excise duty is leviable on the products which are manufactured. Hence we are of the view that the applicant has made out a prima facie case for waiver of amount of duty and penalty involved. The application for waiver of duty and penalty is allowed and recovery thereof stayed till disposal of the appeal. 5. emsp We also find that the issue is identical to the issue in Appeal No. E/1058/07. Since issues are identical, we direct the registry to list/tag this appeal with Appeal No. E/1058/07 for disposal. (Dictated in Court)
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2008 (7) TMI 718 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... g which the appellants cleared what they called ldquo Isopropyl Alcohol (weak) rdquo on payment of duty without including in its assessable value the cost of its container (drum). These drums had come into their factory as containers of inputs. The emptied drums were used for clearance of Isopropyl Alcohol (weak), which was generated in the course of manufacture of final products (pharmaceuticals) and was considered by the appellants to be lsquo waste rsquo . Nevertheless, the appellants paid duty on the said item. According to the Revenue, the item was very much dutiable and the cost of container also required to be included in its assessable value. We have not, prima facie, found evidence against the contention of the appellants that ldquo Isopropyl Alcohol (weak) rdquo is not excisable. In the circumstances, there will be waiver of pre-deposit and stay of recovery in respect of the duty and penalty amounts. It is ordered accordingly. (Dictated and pronounced in open Court)
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2008 (7) TMI 714 - CESTAT, CHENNAI
Refund claim - Unjust enrichment ... ... ... ... ..... r Notification No. 225/86-C.E. dated 3-4-1986 was available to the manufacturer of final products with retrospective effect from 1-3-1986 by virtue of the provisions of Section 2 of the 1986 Act. Further, the Tribunal rsquo s decision in Indian Petrochemical Corporation Ltd. v. Commissioner - 2006 (205) E.L.T. 588 (Tri.-Mumbai) supports the appellant rsquo s plea against unjust enrichment. The Tribunal rsquo s Larger Bench decision in Kesar Enterprises Ltd. v. Commissioner - 2000 (119) E.L.T. 295 (Tribunal-LB) is also in support of the appellant rsquo s contention that the bar of unjust enrichment is not applicable to their refund claim which is consequential to the enactment of the 1986 Act. As per the ratio of the Larger Bench decision, Section 11B of the Central Excise Act is not applicable to the subject refund claim. 3. emsp In the result, the impugned order is set aside and this appeal is allowed. (Operative portion of the order was pronounced in open Court on 1-7-2008)
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2008 (7) TMI 713 - CESTAT, AHMEDABAD
Interest on delayed refund - Refund - Excess payment of duty ... ... ... ... ..... months from the date of making of refund application, we hold that the appellants are entitled to interest in terms of Section 11BB from the said date of expiry of 3 months. Appeal of the assessee is allowed on this ground and the matter is remanded to the Original Adjudicating Authority for quantification of interest amount. 4. emsp Revenue rsquo s appeal is against the same order praying for setting aside that part of Commissioner (Appeals) rsquo order vide which he has sanctioned the refund in toto, on the ground that Board rsquo s circular cannot be made effective with retrospective effect. However, we find that as rightly observed by Appellate Authority, Tribunal rsquo s order was not appealed against and has attained finality and as such, is required to be implemented by granting refund. No infirmity can be found in the same. Accordingly appeal filed by the Revenue is rejected. 5. emsp Both the appeals are disposed off in above manner. (Pronounced in Court on 30-7-2008)
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2008 (7) TMI 710 - CESTAT, NEW DELHI
Imposition of Penalty - interpretation of tariff entries - Held that:- This is the case involving interpretation tariff entries, therefore, there is no mis-declaration or classification can be attributable to the assessee - penalty not invocable - Duty demand along with interest is confirmed - appeal disposed off.
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2008 (7) TMI 709 - CESTAT, MUMBAI
Rectification of mistake - Error apparent on face of record ... ... ... ... ..... h, the findings of the Tribunal on this point is correct and does not requires any rectification. As regards other point, the benefit of Notification No. 264/76 for exemption of chemical preparations, made by the appellants, we find that the said notification does speak about the applicability to photographic film only and not to cinematographic films. It seems that there is an error apparent on the face of record in the said order, in respect of the application of the said notification. We also find that the said order has not come to any findings on the issue of limitation. 5. emsp In our considered opinion, the entire issue has to be gone into detail again by the Bench. Hence our order dated 26-2-2008 to the extent of question of applicability and exciseability of the chemical solution needs to be reconsidered and hence we recall our dated 26-2-2008 and restore the appeal to its original number, Registry is directed to list the appeal for final hearing. (Dictated in Court)
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2008 (7) TMI 708 - CESTAT, CHENNAI
Appeal - Service of order ... ... ... ... ..... her words, the sender would have to show that the order was, in fact, sent by registered post to the addressee. It was only then that the deeming fiction spelt out in terms of sub-section (2) of Section 37C read with Section 27 of the General Clauses Act would stand attracted. The burden thereafter would be on the addressee to show that the order was not, in fact, served. The provisions of Section 153 of the Customs Act are analogous to those of Section 37C of the Central Excise Act. Hence the ratio of the Hon rsquo ble High Court rsquo s decision is applicable to service of notices/orders of the Tribunal on parties under Section 153 of the Customs Act. 3. emsp In the above view of the matter, the stay order passed by this Bench will be deemed to have been served on the appellants. They have not complied with our direction for pre-deposit. The appeal, therefore, gets dismissed for want of compliance with Section 129E of the Customs Act. (Dictated and pronounced in open court)
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2008 (7) TMI 707 - CESTAT, CHENNAI
SSI Exemption - Rural area - Held that: - if the factory of M/s. SPL is considered to be situate in rural area, the bar, under the relevant SSI exemption notifications, against grant of SSI benefit to specified goods affixed with the brandname of another person cannot operate and, in that event, the assessee will not be required to pay duty of excise for the relevant periods whatever be the method of valuation of the goods - matter requires re-examination - appeal allowed by way of remand.
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2008 (7) TMI 705 - CESTAT, MUMBAI
... ...
... ... ..... ties have misdirected themselves, as this was a case of reduction in price which was referred to as discounted price by the appellants. The order itself states that invoices do not show any discount but only the net price charged from the customer. Therefore, it is clearly not a case of offering discounts but of reduction in prices. Since 60 goods were sold to Southern Electric Co., it has to be considered as normal price unless the department is able to show that the transaction between two were not on principal to principal basis or are influenced by some other consideration or that there was flow back of money from the dealer to the manufacturer in addition to the price referred to in the invoices. In the absence of any such evidence the genuineness of the price cannot be doubted and the demands are clearly unsustainable. 6. emsp In view of the above, we set aside the order of Commissioner (Appeals) and allow the appeal with consequential relief. (Pronounced in open Court)
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2008 (7) TMI 703 - CESTAT, MUMBAI
Rectification of Mistake - Mistake apparent on face of record ... ... ... ... ..... ered under the definition of factory premises rsquo . Since the issue had to be settled by the highest court, we are of the considered view that visiting the assessee with penalty is uncalled for and unwarranted. Hence the appeal filed by Revenue to the extent of the penalty to the equal amount of demand upheld by us is dismissed. rdquo 6. emsp After paragraph 8, in our order dt. 19-9-2007 the following paragraph shall be inserted. ldquo Paragraph 8 (a) - Since the confirmation of the demand of the duty on the furnace oil used by the assessee for generation of steam used in the argaon separation plant is of a residual nature or otherwise has to be decided on remand proceedings, the issue of imposition of penalty on the assessee on this count will also be kept open and to be decided by the adjudicating authority. rdquo 7. emsp Subject to such modification as herein-above indicated, the application for rectification of mistake is disposed off. (Pronounced in Court on 21-7-2008)
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2008 (7) TMI 702 - CESTAT, MUMBAI
Refund - Unjust enrichment - Held that: - when the gate passes show that the duty has been recovered, the incidence of duty has to be held as being passed on to the customers - refund allowed.
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2008 (7) TMI 700 - CESTAT, MUMBAI
Cenvat/Modvat - Capital goods ... ... ... ... ..... al). 2. emsp I have considered the submissions. I find that in the case of J.K. Synthetics Ltd. (cited supra), all that the Tribunal said was that the amendment by Notification No. 14/96 was of a clarificatory nature and will have retrospective effect. In the present case the goods itself have been imported after the amendment and therefore, the question of having any retrospective effect simply does not arise in this situation. Once the goods have been imported after the amendment, the definition of the capital goods as per amendment will be applicable and it is not the applicant rsquo s case that the goods imported by him falls under the heading specified under the definition of capital goods under Rule 57Q or are parts and accessories of goods specified under Chapter Heading under Rule 57Q. In view of the same, I do not find any infirmity in the order of the Commissioner (Appeals) and accordingly uphold the same and reject the appeal. (Pronounced and dictated in the Court)
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2008 (7) TMI 699 - CESTAT, MUMBAI
Penalty - Imposition of ... ... ... ... ..... the respondents that the valuation has to be done in a particular way, which they did and discharged duty liability. It is seen that the penalty has been imposed on the respondent under Section 11AC of CEA 1944. Ld. Commissioner (Appeals) rsquo s findings while setting aside the penalty are reproduced below - ldquo It is also to be seen whether the party had any motive to evade duty. The machine was cleared for captive consumption, the final product was dutiable. Modvat credit was legally available to them. Under such circumstances, they had no benefit whatsoever. The revenue implication also appears to be zero. rdquo 4. emsp We are of the considered view that the findings of the ld. Commissioner (Appeals) are correct, as it is apparent, whenever the question of captive consumption arises, there are notifications which can be availed for non-payment of duty. Accordingly, we do not find any merits in the appeal filed by the revenue and the same is rejected. (Dictated in Court)
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2008 (7) TMI 698 - CESTAT, CHENNAI
Exemption - Undertaking - Notification No. 41/99-C.E. ... ... ... ... ..... of the Revenue is squarely supported by our Final Order Nos. 1105-1132/2006 dated 29-11-2006 since reported as 2007 (219) E.L.T. 362 (Tri.-Chennai). It is also pointed out that the civil appeal filed by M/s. Golden Dew Tea Factory against the above final order has been dismissed by the Apex Court vide 2008 (221) E.L.T. A28 (S.C.). We have heard the learned Consultant also, who fairly concedes the settled position of law. 2. emsp Following the settled law on the point, we accept the ground raised by the Revenue in each of these appeals and hold that the date on which the letter of undertaking was received by the Assistant Commissioner was the ldquo date of undertaking rdquo for purposes of Notification No. 41/99-C.E. ibid and accordingly the respondents would not be entitled to claim the benefit of Notification for the period prior to that date. The contra decision of the Commissioner (Appeals) is set aside and these appeals are allowed. (Dictated and pronounced in open court)
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2008 (7) TMI 695 - CESTAT, CHENNAI
Cenvat/Modvat - Deemed credit ... ... ... ... ..... anufacturer if it avails credit of duty paid on other inputs under sub-rule (1) of Rule 57A of the C.E.R. As per para 5.2 of Trade Notice No. 90/96 of the Commissionerate issued on the basis of clarification received from the Board, deemed credit will be inapplicable to a manufacturer who availed any credit of duty under any notification issued under sub-rule (1) of Rule 57A of C.E.R. The only exception is where the inputs are processed fabrics themselves. From the above provisions of the statute and the Trade Notice, it is abundantly clear that when processed fabrics are manufactured and cleared using partially processed fabrics as inputs, the manufacturer will be eligible for input credit on the partially processed fabrics and deemed credit on the processed fabrics cleared. In view of the above legal position, the impugned order is not sustainable and it is accordingly set aside. The appeal filed by M/s. Pioneer Processing is allowed. (Dictated and pronounced in open court)
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2008 (7) TMI 692 - CESTAT, CHENNAI
Interest on demand - Relevant date for calculation of interest - Held that: - Easwaran & Sons Engineers Ltd. v. CCE, Chennai, [2006 (9) TMI 411 - CESTAT, CHENNAI], held that, interest on duty was held to be leviable under Section 11AA of the Central Excise Act for the period from the date immediately after the date of expiry of three months from the date of enactment of the provision to the date of payment of duty, on a similar set of facts - appeal allowed - decided in favor of appellant.
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