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Central Excise - Case Laws
Showing 41 to 60 of 326 Records
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2008 (7) TMI 815
Stay/Dispensation of pre-deposit - Demand - Limitation ... ... ... ... ..... t the amount. 3. emsp The learned Counsel submits that the appellant is a state PSU unit and they are facing severe financial hardship. He submits that all the details were furnished to the Department and there is no suppression of facts in the matter. 4. emsp On a careful consideration of the matter, we notice that the appellant is a state PSU unit and suffers huge loss in terms of the Balance Sheet produced by them. The show cause notices were issued in 2006 as against the duty liability arising during the period from March 2002 to February 2003. Therefore the demands are barred by time. Hence the stay applications are allowed by granting waiver of pre-deposit of the amounts. There shall be no recovery of the amount even after the expiry of 180 days from the date of issue of this order. As the total amount involved in the matter is more than Rs. 50 lakhs therefore the appeals are listed for out of turn hearing on 3rd November 2008. (Prononced and dictated in the open court)
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2008 (7) TMI 813
Yarn - Exemption ... ... ... ... ..... dquo S rdquo twist can qualify for being considered as sewing thread. Since the dispute relates to period prior to 23-7-96, he seeks to set aside the orders of lower authorities. 5. emsp Learned Advocate for the respondent reiterates the findings of the Commissioner (Appeals). 6. emsp We have carefully considered the submissions made from both sides. The original authority as well as Commissioner (Appeals) based on correspondences between the respondent and their Customers came to conclusion that the multi fold yarn was used for weaving and not as sewing thread and therefore, eligible for the benefit of Notification No. 35/95. No evidence has been adduced to upset the factual and concurrent findings of the original authority and the Commissioner (Appeals). Therefore, we do not find any justification to interfere with the order of the Commissioner (Appeals). 7. emsp The appeal of the Department is, therefore, rejected. (Operative part of the order pronounced in the open Court)
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2008 (7) TMI 811
Cenvat/Modvat - Inputs removed to job worker ... ... ... ... ..... hority. The appellant shall make available evidence within 45 days from the date of receipt of this order. (b) emsp The original authority shall thereupon reconcile and demand duty, if any, in relation to processed goods, which are not accounted for and the by-product and waste not returned back and not proved to have been cleared on payment of duty by the job worker. He shall dispose of the matter in the light of provisions contained in Rule 57F(5), (6), (8), (11) and (18) of the erstwhile Cental Excise Rules, 19944 and other applicable provision. Whether penalty is warranted and if so, to what extent shall also be decided in de novo consideration. (c) emsp The original authority shall decide the issue within two months from the date of expiry of time limit for submission of evidence by the appellant and after granting reasonable opportunity of hearing. 8. emsp The appeal is allowed by way of remand on the above terms. (Dictated and pronounced in the open Court on 25-7-2008)
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2008 (7) TMI 810
Refund - Unjust enrichment ... ... ... ... ..... certificate issued by BSNL that the BSNL confirmed the adjustment of amount on account of price variation. The Tribunal in the case of Sandeep Metal Craft Pvt. Ltd. v. CCE, Nagpur reported in 2008 (226) E.L.T. 428 (T-M) held that the assessee cleared the goods under the contract price of ordnance factory and certificate issued by the Indian Ordnance Factory that the amount paid is only the amount, which has been contracted. It has been held that the assessee has not received any amount over and above of the contract price and incidence of duty has not been passed to the customers. 6. emsp In the present case, the appellant produced the certificate of BSNL confirming the adjustment of higher price of duty and in view of the decision of the Tribunal, I find that the Commissioner (Appeals) rightly sanctioned the refund claim. Accordingly, I do not find any merit in the appeal filed by the Revenue. The appeal is rejected. (Order dictated and pronounced in open court on 22-7-2008)
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2008 (7) TMI 809
Demand and penalty - Shortage, clandestine removal ... ... ... ... ..... given by the Respondents for the shortage of the finished goods. Moreover Tribunal s judgment in the case of Machino Montell (I) Ltd. reported in 2004 (168) E.L.T. 466 (Tri.-lb) 2004 (62) RLT 709 has been reversed by Hon rsquo ble Punjab and Haryana High Court vide judgment reported in 2006 (202) E.L.T. 398 (P and H) 2006 (4) S.T.R. 177 (P and H). Therefore, while the impugned order confirming the duty demand and 25 of the duty towards penalty is upheld, the portion of the impugned order holding that no penalty is imposable on the company is not correct and the same is set aside. However, looking to the fact that there is no evidence of involvement of Shri Sanjay Jain, an executive of the Respondent company and he is only an employee of the company, the impugned order with regard to imposition of penalty on Shri Jain does not merit any interference. 4. emsp The Commissioner of Central Excise (Appeals) rsquo s order stands modified, as above. (Order dictated in the open Court)
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2008 (7) TMI 807
Appeal to Appellate Tribunal - Maintainability ... ... ... ... ..... ate order. 3. emsp Ld. DR submits that the claim relates to rebate of duty and, therefore, this Tribunal has no jurisdiction in view of the provisions of Clause 1(b) of first proviso to Section 35B(1) of the Central Excise Act, 1944. It is seen that the Appellant has not claimed this amount as rebate of duty. If the Appellant is treating it as rebate of duty, the same should be included in their rebate claim application. So, it is refund of duty and not rebate claim and, therefore, the submission of the ld. DR has no merit. 4. emsp In any event, I find that the Appellant has not claimed the rebate of duty of Rs. 53,651/- and there is no scope for challenging the rebate order. The findings of both the authorities below are not sustainable. Accordingly, the impugned orders are set aside and the matter is remanded back to the Adjudicating Authority to consider the refund claim of Rs. 53,651/-, in accordance with law. (Order dictated and pronounced in the open court on 18-7-2008)
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2008 (7) TMI 804
Cenvat/Modvat ... ... ... ... ..... of duty. 5. emsp In any case, there are conflicting views on the same issue expressed by co-ordinate Benches of the Tribunal. While this Bench held in favour of the Revenue vide Lakshmi Machine Works (supra), the West Zonal Bench held against the Revenue vide Gharda Chemicals (supra). In the circumstances, we are of the view that a Larger Bench of the Tribunal should address the issue. Accordingly, the Registry is directed to place the records before the Hon rsquo ble President for constitution of a Larger Bench for considering and deciding on the following issue - Whether, during the period March, 1996 to May, 1998, a manufacturer of final product, who procured inputs and availed MODVAT credit thereon, was entitled to remove the inputs as such, without reversal of the credit or payment of equivalent amount of duty, to a 100 EOU under CT-3 certificate in terms of Notification No. l/95-CE, dated 4-1-1995. (Operative part of the order was pronounced in open court on 31-7-2008)
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2008 (7) TMI 803
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... ich is used in the manufacture is not sufficient. According to him, furnace oil or the plastic granules are not separately stored, accounted for and separate records maintained. 4. emsp We have considered the submissions from both sides. Both in the case of furnace oil and plastic granules, we find that credit is not taken and appellants have ensured that in respect of inputs which are going into exempted products, credit has been reversed in advance in both the cases. We feel that there is substantial compliance with provisions of Rule 6(2) of Cenvat Credit Rules and in the absence of specific procedure prescribed by the Board, it is for assessee to choose the proper method. What is to be ensured is that the credit is not taken in respect of inputs which go for the exempted products. Therefore, we feel that prima facie the assessee has a strong case and therefore, the stay has to be allowed and therefore, we allow the stay petition unconditionally. (Pronounced in open Court)
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2008 (7) TMI 800
Appeal by Department - Penalty - Imposition of ... ... ... ... ..... emsp As regards the appeal filed by the assessee, we find that the assessable value has been accepted by the appellant. It is also seen from the record that the adjudicating authority has considered the Modvat credit on the inputs, while arriving at the assessable value. If that be so, the appeal against the impugned order to the extent of arriving at the assessable value does not survive and is liable to be dismissed and we do so. 8. emsp As regards the imposition of penalty upon the appellant, we find that this issue was being agitated before various forums. As such, the penalty imposed upon the appellant under provisions of Rule 173Q is not warranted. In the peculiar facts and circumstances of the case, we find that the penalty imposed on the appellant needs to be set aside and we do so. The appeal of the appellant to that extent is allowed with consequential relief, if any. 9. emsp All the appeals are disposed off as herein above stated. (Dictated and pronounced in Court)
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2008 (7) TMI 796
Stay/Dispensation of pre-deposit - Demand - Limitation ... ... ... ... ..... e mentioned case. In the case of M/s. Salasar Dyeing and Printing Mills Pvt. Ltd. relied upon by the ld. Advocate, the Tribunal has held that the period of 5 years is to be adopted from the date of the show cause notice. However, it is seen that the earlier orders of the Tribunal were not taken note of by the Bench in the case of M/s. Salasar Dyeing and Printing Mills Pvt. Ltd. 2009 (235) E.L.T. 93 (Tribunal) . Inasmuch as the precedent decisions are in favour of the appellant, I am of the view that appellants, prima facie, have been able to establish a case in their favour on the point of limitation. 5. emsp I also note that the appellants rsquo financial position is such that directing to deposit any amount would lead to undue financial hardship. As such by taking into account the prima facie merits as discussed above and the financial position, I allow the stay petitions unconditionally and fix the appeals for final disposal on 20-8-2008. (Pronounced in Court on 29-7-2008)
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2008 (7) TMI 795
Production capacity based duty - Abatement of duty ... ... ... ... ..... hall deal with a claim for abatement of duty. It was after examining these provisions that the Board, in the cited circular, took the view that an independent textile processor claiming abatement of duty for any period of non-operation of stenter (being not less than 7 days) should not be compelled to pay duty first and then claim abatement. We do not find any reason why this liberal approach suggested by the Board should be resisted by the department. Yet another reason which we have found in favour of the respondents is that it is not the case of the Revenue that the abatement claims in question would have been rejected for any reason whatsoever, had they been filed after payment of duty. In other words, a revenue-neutral situation is discernible from the facts of this case. 5. emsp For the aforesaid reasons, without commenting on the cited case law, we sustain the order of the learned Commissioner (Appeals) and dismiss these appeals. (Dictated and pronounced in open court)
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2008 (7) TMI 790
Production capacity based duty - Annual capacity of production - Fixation of - Refund - Unjust enrichment
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2008 (7) TMI 789
Penalty and interest - Cenvat/Modvat - Capital goods ... ... ... ... ..... Pvt. Ltd. (supra) held that 100 credit taken in the same financial year and the credit was reversed on being pointed out by the Department, which was not utilised by the assessee, imposition of penalty and recovery of interest are not sustainable. 5. emsp In the present case, the Adjudicating Authority accepted that the Appellant had not utilised the credit and demand of interest is not justified. I agree with the submission of the ld. DR that there is a violation of the Rules and, therefore, minimum penalty should be imposed. But, in the present case, the Appellant is a newly started factory and the production has not yet been started. Therefore, considering the facts and circumstances of the case, I find that the Appellant should be cautioned for such violation of the rules and no penalty is warranted. In view of the above discussions, the impugned order is set aside. The appeal is allowed with consequential relief. (Order dictated and pronounced in open court on 24-7-2008)
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2008 (7) TMI 788
... ...
... ... ..... unloading charges, which are post-manufacturing expenses and would not form part of the assessable value. On the other hand Revenue rsquo s contention is that such charges was recovered by the appellant from their customers depress the value of the product and should be included. We do not find any evidence to support the above contention of the Department. Commissioner (Appeals) has passed a detailed order and no infirmity can be found with the same. Accordingly, appeal filed by the Department is rejected (Pronounced in Court)
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2008 (7) TMI 787
Stay/Dispensation of pre-deposit - Scrap - Excisability ... ... ... ... ..... e accepting their claim that cutting and slitting HR/CR coils does not amount to manufacture, confirmed the demand of duty on scrap sold as above and also imposed penalty of Rs. 25 lakhs. 3. emsp Learned advocate for the appellant brings to our notice that on the very same issue for subsequent period January 2005 to June, 2005, the demand proposed has been dropped granting them benefit of notification No. 89/95. 4. emsp Learned DR reiterated the findings of the Commissioner. 5. emsp We have carefully considered the submissions from both the sides. We find that the activity of slitting and cutting of coils have not been considered as amounting to manufacture, the waste arising out of such activities may not be excisable. Therefore, we hold that the applicant has made out a prima facie case for waiver of dues as per the impugned order. Accordingly, we waive the pre-deposit of dues and stay recovery thereof till the disposal of appeal. (Dictated and pronounced in the open Court)
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2008 (7) TMI 786
Looms parts - Classification of ... ... ... ... ..... s for use with machines of heading no. 84.44, 84.45, 84.46 or 84.47 (for example, dobbins jacguards, automatic stop motions, shuttle changing mechanisms) parts and accessories suitable for use, solely or principally with the machines of this heading or of heading no. 84.44, 84.45, 84.46 or 84.47 (for example spindles and spindle flyers, card clothing, combs extruding nipples, shuttles heads and head frames, hosiery nipples). rdquo 7. emsp It may be noticed that this heading is a very specific heading which includes parts and accessories for the machinery, i.e. loom which merited classification under 8446. This factual aspect is not disputed. It is a settled law that, for classification of a product, a chapter sub-heading, that is specific, should be preferred than the general sub-heading. 8. emsp Accordingly, we are of the considered view that the impugned order is correct and does not suffer from any infirmity. The appeal filed by the revenue is rejected. (Dictated in Court)
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2008 (7) TMI 785
Penalty - Mens rea - Valuation of captively consumed goods ... ... ... ... ..... rom the records that the Commissioner (Appeals), for a limited purpose of quantification of demand of duty, on the semi-finished goods, which was cleared by the respondent, has remanded the matter to the adjudicating authority. We find that the ratio of the Supreme Court in MIL India Ltd. squarely cover the issue in favour of the revenue as the Commissioner (Appeals) is not empowered to remand back the matter to the adjudicating authority after the amendment to Section 35A. 9. emsp Accordingly, we set aside that portion of the order, which remands the matter to the adjudicating authority, and remit the matter back to the Commissioner (Appeals), with a direction to determine the quantum of duty payable by the respondent. The Commissioner (Appeals) will grant an opportunity of personal hearing to the respondent. The appeal is disposed of in the above terms. The Cross objection filed by the appellant being in support of the impugned order is also disposed of. (Dictated in Court)
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2008 (7) TMI 784
Exemption to goods supplied to UN or an International Organisation ... ... ... ... ..... A/667-669/WZB/AHD/2008, dt. 3-4-08 2008 (228) E.L.T. 587 (Tri.) and in case of M/s. Hindustan Colas Ltd. v. CCE, Vadodara-I, 2007 (219) E.L.T. 430 (Tri.-Ahmd.). On being pointed out, a contrary judgment of Tribunal in case of CCE v. A.P. Paper Mills - 2005 (179) E.L.T. 411 (Tri.-Bang.) by the learned SDR, the learned advocate submits that said judgment was considered by the Tribunal in case of Hindustan Colas Ltd. and was not followed. 3. emsp In as much as the impugned order of the Commissioner (Appeals) is entirely in favour of the assessee and the disputed issue would have effect only in subsequent proceedings in the pipeline, we hold that the lower authorities while deciding subsequent cases, would not be bound by the findings of Commissioner (Appeals) on the issue of interpretation of notification and would be guided by Tribunal rsquo s order, relied upon by the assessee and referred supra. 4. emsp Appeal is disposed off in above terms. (Dictated and Pronounced in Court)
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2008 (7) TMI 783
Stay/Dispensation of pre-deposit ... ... ... ... ..... lates to Notification No. 175/86-C.E. and the present Notification No. 8/2003 is worded differently. 4. emsp Learned DR submits that these two notifications are substantially the same and he relies on the decision of Ramesh Foods Products and Saurashtra Exports v. CCE, Rajkot reported in 2007 (215) E.L.T. 448 (Tri. - Ahmd.). 5. emsp We have carefully considered the submissions from both sides. We are of the prima facie view that in view of the change in the wordings of the notification No. 8/2003, the decision in the case of Ramesh Foods Products (supra) rendered in the context of 175/86 may not be applicable to the present facts of the case. The case of Saurashtra Exports (supra) relates to denial of Cenvat credit and not denial of the exemption under Notification No. 8/2003. 6. emsp In the light of the above, we waive the pre-deposit of dues as per the impugned order and stay recovery thereof till the disposal of the appeal. (Order dictated and pronounced in the open Court)
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2008 (7) TMI 779
Refund - Supervision charges - storing of the goods outside the godown - Rule 4(4) of Central Excise Rules, 2002 - Order - Appealable order
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