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Central Excise - Case Laws
Showing 121 to 140 of 326 Records
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2008 (7) TMI 691 - CESTAT, NEW DELHI
Demand - Limitation - Bona fide belief ... ... ... ... ..... ional Ltd. v. CCE, Chandigarh-I 2003 (154) E.L.T. 580 (Tri.-LB) , it was held that DTA clearance in excess of the permission granted by the Development Commissioner was not governed by Section 3(1) of Act. Matter was again considered by the Larger Bench in the case of Jaipur Golden Transport Company Ltd. 2007 (215) E.L.T. 503 (Tri.-LB) , wherein the applicability of exemption under notification 125/84 was referred to Larger Bench. 5.3 emsp Under these circumstances, the view taken by the appellants that no duty was payable on the product cleared by them was bona fide and invocation of extended period was not justified. 6. emsp We agree with the above contention of the learned advocate and this is a case where there is no justification for invocation of extended period of limitation. Therefore, the demand of duty and imposition of penalties are not justified. 7. emsp The appeals are allowed on the ground of limitation. (Operative part of the order pronounced in the open Court)
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2008 (7) TMI 690 - CESTAT, NEW DELHI
Appeal to Commissioner (Appeals) - Limitation ... ... ... ... ..... the original authority has been served on 9-1-2007 and the appeal has been filed only on the ninetieth day from the date of receipt of the order. 3. emsp Even if the date of receipt is 9-1-2007, as claimed by the Department, we find that the appeal has been filed on 9-4-2007 i.e. on the ninetieth day from the date of receipt of the order. The delay, if any, is within the power of condonation by the Commissioner (Appeals). 4. emsp We are not going into the dispute relating to the actual delivery of the order to the appellants as we are informed that there was death in the family of appellant-director. Taking a lenient view, we condone the delay, if any, in filing the appeal before the Commissioner (Appeals) and set aside the order of the Commissioner (Appeals) and remand the matter to enable the Commissioner (Appeals) to decide the appeals on merits. 5. emsp The appeals are allowed by way of remand and stay petitions are disposed of. (Dictated and pronounced in the open Court)
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2008 (7) TMI 689 - CESTAT, NEW DELHI
Appeal to Commissioner (Appeals) - Limitation ... ... ... ... ..... ed Advocate submits that preamble to the impugned order indicated that a period of three months is available to the assessee for filing an appeal thereagainst and by taking into consideration the guidelines contained in the preamble, they filed appeal within a period of three months. We find a lot of force in the above submissions of the learned Advocate. The Annexure to the impugned order, led the appellant to entertain a bona fide belief that the appeal was required to be filed within a period of three months from the date of receipt of the order and such lapse on the part of the Revenue itself cannot act prejudice to the appellants rsquo interest and rights. 3. emsp In view of the above, we condone the delay in filing the appeal before the Commissioner (Appeals) and set aside the impugned order and remand the matter to the appellate authority for decision on merits. Stay petition as also appeal get disposed of in the above terms. (Dictated and pronounced in the open Court)
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2008 (7) TMI 687 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Demand and penalty ... ... ... ... ..... eading 90.18 covers ldquo instruments and appliances used in medical, surgical, dental or veterinary sciences, including scientigraphic apparatus, other electro-medical apparatus and sight-testing instruments rdquo . It is not in dispute that the equipment in question was cleared to medical institutions, which used the item for cutting used syringes and needles. It is submitted by the ld. consultant that, when a syringe with needle has to be disposed of immediately after use, it is cut into pieces with the above equipment and the resultant pieces get collected in a receptacle attached thereto. The lower authorities have not found any other use for the equipment. Hence it appears to us that the subject item is classifiable under Heading 90.18. Such goods are unconditionally eligible for concessional rate of 8 . In this view of the matter, 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 (7) TMI 685 - CESTAT, CHENNAI
Demand - time Limitation - Suppression of facts - Held that: - the assessee cannot be held to have suppressed before the department anything which were within their knowledge. It appears that they had enough documentary material with them at the commencement of every fiscal, which made them believe that their prospective raw material suppliers were “small tea growers” - demand of duty set aside - appeal allowed - decided in favor of appellant.
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2008 (7) TMI 683 - CESTAT, KOLKATA
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... ents made by the Appellant enables us to appreciate that there was no failure of natural justice by the two Forums below to grant opportunity to the Appellant for producing respective document which was pleaded to be basis of relief sought. 5. emsp Therefore, prima facie, the Appellant having failed to bring out a case for appreciation and order for stay of realisation of the demand during pendency of the second appeal, its Stay Application fails. Being guided by the Hon rsquo ble Apex Court judgments cited by Revenue as aforesaid and on the basis of material on record, there shall be no stay of realisation of the demand raised against the Appellant by the impugned order and we order accordingly. Entire demand covered by the impugned order be deposited by the Appellant within 4 (four) weeks from today and compliance be made on 27-8-2008. 6. emsp The stay petition fails. (Operative part of the order and reasons of decision was already pronounced in the open court on 15-7-2008)
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2008 (7) TMI 682 - CESTAT, NEW DELHI
Refund - Recovery of Erroneous refund - scope of SCN - whether subsequent reduction in price of the goods, after the clearance of the same would result in lowering the assessable value of the goods, thus making the assessee entitled to refund claim? - Held that: - It is not a case where the show cause pertained to a different issue and allegation, whereas the impugned order is passed in respect of altogether different issue and allegation, in which case, it cannot be said that the impugned orders have travelled beyond the show cause notice - appeal dismissed.
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2008 (7) TMI 681 - CESTAT, MUMBAI
Notification No. 12/94-C.E. ... ... ... ... ..... w of the facts that the goods there also have been accepted and classified as spin finish oil and the textual authorities cited by the Collector (Appeals) in his order and noted above clearly show that such oils have a lubricating function, in the result, appears filed by the Collector are rejected. The Cross Objections also accordingly disposed off. rdquo 7. emsp We find that the use of the products in question is undisputed and is used for spin finishing the synthetic fibre. The said use is for the purpose of treatment of the textile and textile related goods like yarn etc. If that be so, we find that the issue is now squarely covered in favour of the appellant by the decision of the Tribunal in the case of Century Enka (supra). 8. emsp Accordingly, we are of the considered view that the impugned orders are liable to be set aside and we do so. Respectfully following the decision of the Tribunal in the case of Century Enka (supra), we allow the appeals. (Pronounced in Court)
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2008 (7) TMI 680 - CESTAT, CHENNAI
Redemption fine - Confiscation, absence of proposal - Demand - Quantification of ... ... ... ... ..... by the original authority is in the nature of redemption fine. If there was no proposal in the show-cause notice for confiscation of the goods, it was not open to the adjudicating authority to hold the goods liable for confiscation and, for that matter, to consider imposing redemption fine. 4. emsp The orders of the lower authorities are set aside and the case is sent back to the adjudicating authority with a direction to grant the benefit of Section 4(4)(d)(ii) to the assessee while quantifying the demand of duty. If there was no proposal in the show-cause notice for confiscation of the goods, then there shall be no redemption fine and, for that matter, no appropriation from the bank guarantee amount. Otherwise, it is up to the authority to consider afresh the question whether redemption fine has to be imposed and, if so, to what extent. The appeal is disposed of on these terms. The penalty related issue also shall be addressed afresh. (Dictated and pronounced in open court)
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2008 (7) TMI 679 - CESTAT, CHENNAI
Penalty and interest - Default in payment of duty - Interest - Default in payment of duty ... ... ... ... ..... shable if the Section had not come into force. The appellants are entitled to the benefit of this Explanation to Section 132 of the Finance Act, 2001 and, accordingly, the penalties imposed on them are vacated. 4. emsp As regards interest, reliance has been placed on the apex court rsquo s judgment, which reads as under - ldquo The liability to pay interest would only arise on default and is really in the nature of a quasi-punishment. Such liability although created respectively could not entail the punishment of payment of interest with retrospective effect. rdquo In view of the above decision, interest on duty cannot be recovered from the respondents as liability to pay interest is in the nature of a quasi-punishment. In other words, by virtue of the apex court rsquo s ruling, the benefit of Explanation to Section 132 of the Finance Act, 2001 gets extended to interest also. The impugned order gets set aside and this appeal is allowed. (Dictated and pronounced in open court)
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2008 (7) TMI 678 - CESTAT, AHMEDABAD
Cenvat/Modvat credit - Capital goods - Demand - Time Limitation - Rule 57Q - classification of capital goods
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2008 (7) TMI 677 - CESTAT, MUMBAI
Waste and scrap - Dutiability - Held that: - the Revenue is not able to provide evidence regarding the classification of the waste MEG under 3950.90, in the category of plastic goods. In the absence of any evidence, that the product “used MEG” merits classification under 3950.90, we are of the considered view that the findings arrived by the Commissioner (A) are correct - duty cannot be imposed - appeal dismissed - decided against Revenue.
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2008 (7) TMI 676 - CESTAT, NEW DELHI
Perfume - Classification of ... ... ... ... ..... learned Appellate authority to hold that the goods shall be classifiable under S.H. 33.03 and that is proper. Therefore, the first appellate order which is more reasoned does not call for any interference. 4. emsp Heard both sides and perused record. To redress grievance of Revenue, we tried to find out basis of the assessment. The show cause notice appears to have been designed by a detailed study. But none of the authorities brought out such study to record for appreciation. In absence of such material, user criteria appears to be immaterial and belonging of the goods to the class of S.H. 33.03 remains undisturbed for the finding by the learned Appellate authority that such classification is also followed by the Commissionerate Delhi-I. Also for lack of cogent evidence, to hold otherwise would be improper. 5. emsp In view of aforesaid observations, we are compelled to uphold the first appellate order. Revenue rsquo s appeal fails. (Dictated and pronounced in the open Court)
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2008 (7) TMI 675 - CESTAT, AHMEDABAD
Cenvat/Modvat - Quantum of credit ... ... ... ... ..... 0 E.O.U. as excise duty. Had this been the intention of the Government, the proviso would not have been termed, in the present form. In that situation the proviso should have provided that the credit of specified duty shall be restricted to the extent of portion of excise duty which is equivalent to the additional duty of customs paid by the 100 E.O.U. The phrase ldquo equivalent to the duties of excise specified under (i) and (ii) above paid on such inputs rdquo refers to the payment of (a) duty of excise under Central Excise Act and (b) additional duty of excise under the Additional Duties of Excise (Textiles and Textile Articles) Act. If the Additional Customs duty leviable on like goods includes any other excise duty, such as duty under the Additional Duties of Excise (Goods of Special Importance) Act, 1957, Modvat Credit will not be available in respect of such duty. rdquo 5. emsp In view of the above discussions the appeal is rejected. (Pronounced in Court on 22-7-2008)
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2008 (7) TMI 670 - CESTAT, MUMBAI
Refund - Unjust enrichment ... ... ... ... ..... arn interest within a period of three months from the date of passing of the Tribunal orders. Reference in this regard may be made to Hon rsquo ble Supreme Court rsquo s decision in the case of ITC Ltd. - 2005 (179) E.L.T. 15 (S.C.). 4. emsp In view of the above, I set aside the impugned order and allow the appeal in respect of interest, the same shall be calculated by the authorities below at rates applicable and for the period relevant for the purposes of the present appeal. rdquo It can be seen that the ratio of the decision of the Hon rsquo ble High Court and the Tribunal are squarely covering the issue in favour of the appellant. 8. emsp Accordingly, in view of the above reasonings and respectfully following the decisions of Hon rsquo ble High Court and Tribunal, I set aside the impugned order and allow the appeal in respect of refund of the amount of Rs. 1,74,827/- and direct the lower authorities to refund the amount to the appellant. (Pronounced in Court on 11-7-2008)
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2008 (7) TMI 669 - CESTAT, MUMBAI
Remission of duty - Intimation of loss and clearance of damaged goods ... ... ... ... ..... The certificate dated 15-2-1999 (Page 180 of the paper book) issued by the New India Insurance Company Ltd. shows that no element of Modvat excise portion of the relevant stock in raw material, bought out parts, semi-finished goods and finished goods is included in the full and finally settled amount of damage loss payment. rdquo 9. emsp I find that the above reproduced ratio squarely cover the issue, which is before me as the appellant has clearly informed the department on 18-8-2005 about the loss/damage of lsquo cut-tobacco rsquo . It is also seen from the records that the appellant rsquo s factory was under the physical control of the excise authorities. If that be so, the adjudicating authority rsquo s findings to reject the remission application seem to be on the wrong reasoning. Accordingly, the impugned order rejecting the remission application of the appellant is set aside and the appeal is allowed with consequential relief, if any. (Pronounced in Court on 11-7-2008)
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2008 (7) TMI 668 - CESTAT, MUMBAI
SSI exemption - Clubbing of clearances ... ... ... ... ..... rdquo 8. emsp From the plain reading of the above clause, it is clear that the clearances, which are exempted from the whole of the excise duty is to be excluded, for arriving at the value of the clearances made by the respondent. In this case, the respondent at Mumbai unit, though having not declared the existence of Goa unit, cannot be deprived of the benefit of the Notification No. 9/2000, as it is undisputed, that at Goa unit, the respondent has availed the benefit of Notification No. 9/2000, which exempt the goods manufactured in the rural area, be it branded or unbranded. This factual position being not disputed, the question of clubbing clearances of value from Goa unit to the Mumbai unit does not arise. 9. emsp Accordingly, we are of the considered view that the impugned order does not suffer from any infirmity and the same is upheld. The appeals filed by the Revenue are rejected and cross-objection filed by the respondent are also disposed off. (Pronounced in Court)
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2008 (7) TMI 667 - CESTAT, NEW DELHI
Recovery of Govt. dues - Liability of subsequent owner of unit ... ... ... ... ..... ecovered in the manner provided thereunder. Sub-clause (ii) of clause (c) of Section 142 refers to movable or immovable property belonging to or under the control of such person. As such, it is clear that such person in the above Section refers to the person from whom the dues are to be recovered. It is only the proviso which authorizes the Revenue officer to recover the dues from the property even if they are in the possession of the person so succeeding and in the hands of the person who has bought the property. However, the said proviso was introduced in the year 2004 and was not on the statute book during the relevant period. Inasmuch as the Commissioner (Appeals) has not considered the said issue and has not examined the dispute from the above angle, we set aside the impugned order and remand the matter to him for fresh decision in the light of the observations made by us in the preceding paragraph. The appeal is disposed of in above terms. (Pronounced in the open Court)
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2008 (7) TMI 666 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... the scope of the expression of lsquo duly rsquo , by including the CVD, was retrospective in nature. 5. emsp As regards the second submission of the learned Advocate, we at this stage are of the view that the issue is contentious and arguable. The decision of the Hon rsquo ble High Court of Punjab and Haryana in the case of Simplex Pharma (P) Ltd., (supra) is not fully applicable inasmuch as in the instant case the final product manufactured by the appellant was exempted from payment of duty and as such, entitlement to Modvat credit of CVD is not prima facie established. 6. emsp In view of the foregoing, we direct the appellant-applicant to deposit 50 of the confirmed demand of duty within a period of twelve (12) weeks from today. Whatever already stands paid by the appellant either in cash or by adjustment would be considered towards the directed amount of deposit. Matter to come up for ascertaining compliance on 15-10-2008. (Order dictated and pronounced in the open court)
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2008 (7) TMI 665 - CESTAT, NEW DELHI
Cenvat/Modvat - Order - Appealable order ... ... ... ... ..... for remission of duty, ought to have passed an order in appealable form as has been done by him in one case. Mere communication of his order by an officer below the rank of the Commissioner may give a reasonable belief to the assessee that no appeal can be filed against such communication. As such, the appellants cannot be blamed for not filing appeal against such communication and cannot be denied the benefit of ratio of the law declared by the Larger Bench in the case of Grasim Industries. Accordingly, we set aside the impugned orders and remand the matter to the Commissioner for fresh decision on the remission claim, in terms of the law declared in Larger Bench decision in Grasim Industries. We make it clear that appellant rsquo s refund claim in respect of credit involved in the case where the issue stands decided by the Commissioner by passing an appealable order is being rejected. All the appeals are disposed of in above terms. (Pronounced in the open Court on 9-7-2008)
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