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Central Excise - Case Laws
Showing 61 to 80 of 326 Records
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2008 (7) TMI 778
Refund - Unjust enrichment ... ... ... ... ..... s of refund duty amount was paid. On perusal of both the certificates, there is no indication that the said amount was shown in their books of account at the disputed period. Further, it was revealed from the Balance Sheet as on 31st March, 2006, the machinery imported during that period added value of Rs. 45,37,863/-. Ld. Advocate submits that the said amount is capital investment and not capital expenses. On perusal of the records, I do not find any material that the said amount was shown as capital goods investment. On the contrary, the Commissioner (Appeals) categorically stated that the excess duty paid as capital expenditure and it was shown as expenses. Therefore, in my view, the Appellant failed to prove that the incidence of duty has not been passed on to any other person. Accordingly, I do not find any reason to interfere the order of the Commissioner (Appeals). The appeal filed by the Appellant is rejected. (Order dictated and pronounced in open court on 16-7-2008)
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2008 (7) TMI 777
Refund - Limitation ... ... ... ... ..... he ground of time bar. 10. emsp Regarding unjust enrichment, I find that the Tribunal by final order dated 21-3-2007, in the appellants rsquo own case for different periods, remanded the matter to the Adjudicating Authority for verification of the balance sheet. After examining the record, the Assistant Commissioner sanctioned the refund claim. In the present case, the learned Advocate placed the certificate of the Chartered Accountant in respect of unjust enrichment, certifying the schedule of the balance sheet. I find that this issue is required to be verified by the adjudicating Authority. 11. emsp In view of the above discussion, the refund claim in Appeal No. 5788/04 was rejected on the ground of time bar is set aside. However, both the appeals are remanded back to the Adjudicating authority for verification of the evidences in respect of unjust enrichment. Both the appeals are allowed by way of remand in the above terms. (Order dictated and pronounced in the open Court)
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2008 (7) TMI 776
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... dly, inter-connected undertaking would fall within the definition of related persons under Section 4 of the Act, in which case, the provision of Central Excise Valuation Rules would apply. We find that Rule 4, in such circumstances, mandates adopting of the value of such goods sold by the assessee for delivery at a point of time nearest to removal of goods under assessment. We are informed by the learned Advocate that if such Rule is made applicable, their duty liability would be around 15-16 lakhs. 4. emsp Having made a prima facie observations that the appellant does not have a case in his favour and having noted that no argument on the financial condition stands advanced, we direct the appellant applicant to deposit an amount of Rs. 20 lakhs within the period of 8 weeks from today, subject to which the pre-deposit of balance amount of duty and entire amount of penalty shall stand waived. Matter to come up for ascertaining compliance on 19-9-08. (Dictated in the Open Court)
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2008 (7) TMI 775
Order of Commissioner (Appeals) - Nature of - Appreciation of facts ... ... ... ... ..... saction should be treated as intra-state sale within the State of Orissa. The observations, therefore, have no relevance and need to be set aside, which we direct. rdquo 3. emsp We find that the Commissioner (Appeals) in the impugned order upheld the order passed by the Adjudicating Authority. He however, make observation regarding appropriation of the sale proceeds of the assets which are not subject matter of the proceedings. The Hon rsquo ble Supreme Court in the case relied upon by the revenue held that the Tribunal was not required to go into any other question particularly when the relevant factors were not before the Tribunal. In these circumstances, we find that the observations made by the Commissioner (Appeals), which is under challenge, are unwarranted, therefore, we modify the impugned order to that extend only and the observation under challenge are to be considered as deleted. The appeal is disposed of, as indicated above. (Dictated and pronounced in open court)
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2008 (7) TMI 774
Interest - Cenvat/Modvat credit - Irregular availment of - Penalty ... ... ... ... ..... nue in between the date of availment of Credit and the date of reversal. The Authority should work out the interest payable and realise the same from the Appellant in accordance with law. 4.3 emsp So far as the levy of penalty is concerned, it may be appreciated that penalty is imposable for the deliberate breach of law and the manner of conduct of the breach. It appears that the Appellant has realised its own mistake and reversed the Credit which remains undisputed today in the course of hearing. However, to prevent such a recurrence in future, it would be proper that a mild dose of penalty of Rs. 20,000.00 (Rupees twenty thousand) should be leviable on the Appellant. Accordingly, penalty levied by the Authorities below is reduced to Rs. 20,000.00 (Rupees twenty thousand) and that shall be recoverable in accordance with law. 5. emsp In view of the aforesaid disposal of the Appeal, the Stay Petition becomes infructuous and rejected. (Pronounced and dictated in the open court)
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2008 (7) TMI 773
Clandestine removal - Evidence - Demand - Time Limitation - Held that: - the demand notice was issued in August 1998 much beyond the normal period of six months after the department came to know of the alleged clandestine production and clearances. In the circumstances, the ingredients of the proviso to Section 11A did not exist for invoking the longer period to demand duty. The demand is time-barred - appeal allowed - decided in favor of appellant.
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2008 (7) TMI 772
Parts of Mechanical system - Exemption - Captive consumption - assembly at buyer's site - Notification No. 67/95-CE dated 16-3-95
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2008 (7) TMI 771
Classification of Coconut oil - job-work - coconut oil packed and sold in plastic containers of capacity 50 ml to 500 ml manufactured by the job workers and marketed as pure edible oil - whether classified under CSH 33051990 or CSH 151311 of the CET? -
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2008 (7) TMI 770
Valuation - Electronic goods ... ... ... ... ..... l as Standards of Weights and Measures Act, 1976 will have no application to the electronic gadgets. The relief prayed for in this writ petition in respect of television, audio-video equipment, computers, amplifiers and other electronic gadgets or equipments, it is declared do not fall within the purview of the said Act and the Rules and, consequently, the respondents have no authority or jurisdiction to take any action or insist compliance of the provisions of the Act and the Packaged Commodities Rules in respect of those items. rdquo In view of the Madras High Court decision, which has been followed by the other two High Courts, we are of the view that the demand in these orders is not sustainable. Once the demand of duty is not sustainable, no penalties can be levied. In view of the above observation, we have no other option but to allow all the appeals with consequential relief. (Operative portion of the order pronounced in open Court on conclusion of hearing on 2-7-2008)
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2008 (7) TMI 769
Remand - Second remand ... ... ... ... ..... arned JCDR also, who has fairly acknowledged the fact that the impugned order was passed on the very date of personal hearing and is indicative of non-application of mind to the evidence on record and the submissions of the parties, which ought to have been carefully considered in terms of the Tribunal rsquo s remand order. 4. emsp In the above circumstances, we have no option but to allow these appeals by way of remand once again. The impugned order is set aside and the learned Commissioner of Central Excise is directed to pass a speaking order after (a) carefully examining the evidence on record (b) considering the submissions of parties and (c) stating cogent reasons for the decision by due application of kind. It is also made clear that another reasonable opportunity of cross-examining the witnesses shall be given to the parties before proceeding to pass de novo order of adjudication. Both the appeals stand allowed by way of remand. (Dictated and pronounced in open Court)
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2008 (7) TMI 768
Interest and penalty - Delayed payment of duty ... ... ... ... ..... ation of the issue, we find that the appellant is not challenging the differential duty liability. It has already been paid. They are challenging the payment of interest and also the penalty, which has been upheld by the Commissioner (Appeals). We find from the records that appellants had the bona fide doubt with regard to the payment of duty on the goods cleared from the Depot and the Consignment Agent premises. Therefore, in our view penalty is not called for. But as far as interest in concerned, it is a statutory liability. When the appellant is supposed to pay the duty on the date of clearance and if on the date of clearance the duty paid is less, then definitely when the differential duty is paid later, the interest liability automatically accrues and the Tribunal cannot set aside the demand of interest. Hence, while setting aside the penalty, we order that the interest paid cannot be refunded. The appeal is allowed to this extent. (Pronounced in open Court on 28-7-2008)
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2008 (7) TMI 767
Show cause notice - Issuance of - Exemption ... ... ... ... ..... contended that they did not avail Modvat credit of duty paid on the input. The period involved in the present cases is March rsquo 98 to 2001. As such, at the most, it can be said that the differential duty for the period March rsquo 98 to June rsquo 98 is not liable to be confirmed on account of the fact that the goods were exempted, though the appellant has chosen to pay duty. Inasmuch as the facts as regards availment of modvat credit of duty are not clear and benefit of exemption notification does not stand discussed by authorities below, we remand the matter to original adjudicating authority for decision on above short point itself. The imposition of penalty would also depend upon the outcome of the remand proceedings and as such the issue is kept open. Demand of duty of Rs. 10,931/- is, however, being confirmed as not contested, upholding penalty of Rs. 2,000/- in respect of said issue. 7. emsp Appeals are disposed of in above manner. (Pronounced in Court on 25-7-2008)
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2008 (7) TMI 766
Appeal before Appellate Tribunal - Additional evidence - New plea ... ... ... ... ..... ted and the appellants be given an opportunity to produce these documents, which are of importance and necessary to decide the main allegation in the case and the defence taken by the assessee. In view of the fresh documents produced, we are of the considered opinion that the matter has to go back to the Original Authority for de novo consideration. The Original Authority shall grant permission to the appellants to produce these documents and the Commissioner shall follow the Principles of Natural Justice and consider the effect of these documents and the defence taken by the appellants. The de novo order shall be a speaking order by taking into consideration all the points raised by the assessees including the case-laws and the fresh evidence. The impugned order is set aside. The misc. application is allowed. Matter remanded for de novo consideration. The matter shall be re-adjudicated within four months from the receipt of this order. (Pronounced and dictated in open Court)
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2008 (7) TMI 763
Clandestine removal - Evidence ... ... ... ... ..... emoval of the goods. As regards the presence of three Central Excise invoices, he has rightly observed that the appellants has given plausible explanation for the same and in absence of any corroborative evidence, such explanation has to be accepted. Mere confessional statements, which in any case stand retracted, are not sufficient to prove the charge of clandestine removal. Revenue has not been able to establish as to whom the goods stand cleared and what was the mode of the clearance of the same. The fact of preparation of three Central Excise invoices dt. 4-12-01, when the excise clerk went on leave, and subsequent quality problem in the batch, thus leading to non-clearance of the goods covered under such Central Excise invoice is required to be accepted in absence of any other evidence to show goods cleared. 5. emsp As such, I do not find any infirmity in the view of the Commissioner (Appeals) and reject the appeal filed by the Revenue. (Pronounced in Court on 23-7-2008)
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2008 (7) TMI 762
Appeal to Commissioner (Appeals) - Departmental appeal - Interpretation of statute ... ... ... ... ..... ovided in statute by a particular modality that cannot be given go by any interpretation that shall defeat purpose of the statute. Learned Appellate Authority in terms of sub-section (4) of Section 35E of the Central Excise Act, 1944 should entertain the appeal of Revenue before him which we are sending back by this order. 5. emsp We direct that without further lapse of time the matter should reach its conclusion in view of the jurisdiction issue dealt as above in the light of sub shy section (4) of Section 35E of the Central Excise Act, 1944. 6. emsp While exercising the appellate power, the learned Appellate Authority should grant an opportunity to both the sides so that they will have no grievance when the matter reaches conclusion. 7. emsp In the result, appeal of the Revenue is allowed by way of remand and this remand by no means affects power of the Appellate Authority to dispose the matter in accordance with law. (Dictated and pronounced in the open Court on 23-7-2008)
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2008 (7) TMI 760
Valuation - Job work - MRP based valuation ... ... ... ... ..... o be discharged accordingly as enumerated in the section. It is seen that in this case the product manufactured bulk and packed in 200 Ltr drums are not covered under the provisions of Section 4A. If that be so, the appellant is free to apply the provisions of Section 4 for the purpose of arriving at the correct assessable value of the said goods. As the appellant is a job worker of M/s. Asian Paints Ltd., the law as has been settled by the decision of the Hon rsquo ble Supreme Court in the case of Ujagar Prints v. UOI as reported at 1988 (38) E.L.T. 535 (S.C.) and 1989 (39) E.L.T. 493 (S.C.), would apply. We are of the considered view that the appellant has not erred in arriving at the assessable value of goods of 200 Ltrs pack as per the formula of Ujagar Prints case. We find both the orders of lower authorities are incorrect and liable to be set aside. Accordingly, in view of the above reasoning the impugned order is set aside and the appeal is allowed. (Dictated in Court)
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2008 (7) TMI 758
Cenvat/Modvat - National Calamity Contingent Duty (NCCD) ... ... ... ... ..... ld. SDR and respondents have submitted cross-objections. The DR submits that as per Section 136 of the Finance Act read with Notification No. 46/2003, dated 17-5-2003, the assessee is not eligible to take and avail credit of NCCD paid on inputs used in the manufacture of finished goods which are exempted from payment of NCCD w.e.f. 17-5-2003. The appeal memorandum filed by the Department or the DR could not explain why the Tribunal rsquo s decision cited by the Commissioner (Appeals) cannot be applied. I find that the decision of the Tribunal cited is squarely applicable to the facts of the case where it was observed that ldquo Firstly, PTY cannot be considered as exempted goods as other duties are imposable on the same. Secondly, if PTY is exported, the appellants would be entitled to use NCCD credit or get a refund of the same. NCCD credit can also be utilized on POY itself. rdquo Therefore, the appeal filed by the Department is rejected. (Dictated and pronounced in Court)
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2008 (7) TMI 757
Demand - Limitation - Larger period - Invocation of ... ... ... ... ..... r letter along with the annexures of clearances of 70 transformers and also the inputs. The appellants clearly have shown their bonafide in depositing duty of Rs. 11,93,210/-. With regard to the required invoices, the details of clearance of invoices were also disclosed in Statement-II annexed to their letter dated 31-5-1999. If the department found the details to be incorrect, then they should have taken steps to recover the amounts within the normal period. There was no suppression of facts for invoking larger period. Therefore, the demands are hit by time bar. The citations referred to by the learned Counsel also support their plea pertaining to the demands being time barred in view of the findings given. The confirmation of demands on the removal of inputs in 1998-99 by show cause notice dated 22-3-2002 is deemed to be time bar and hit by limitation. The demands are set aside by allowing the appeal with consequential relief, if any. (Pronounced and dictated in open Court)
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2008 (7) TMI 756
Demand and penalty - Dyed yarn, exemption ... ... ... ... ..... llant is undertaking dyeing of yarn and using steam for making product marketable, it cannot be said that he was under bona fide belief such use of steam will not amount to dyeing without steam. In case of doubt, he should have approached the departmental authorities for clarification which he did not do so. In view of this, the extended period has been rightly invoked and penalty under Sec. 11AC is justifiable. Since penalty under Sec. 11AC is mandatory, equal to the amount of duty evaded, the same cannot be reduced. Since part of the demand is being remanded back to the Commissioner for re-adjudication, penalty under Sec. 11AC should be re-determined after the duty finally demandable is determined by the Commissioner. As regards penalty under Rule 209A, looking into the mandatory penalty already imposed, personal penalty of Rs. two lakhs imposed on the Director to be quite harsh and the same is reduced to Rs. 20,000/- (Rupees twenty thousand only). (Pronounced on 17-7-2008)
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2008 (7) TMI 755
Demand - EOU, 100% EOU ... ... ... ... ..... by the EOU to clear fresh mushroom packed in it. 4. emsp The ld. SDR reiterates the above grounds. However, she is not in a position to substantiate the grounds with documentary evidence though we had allowed the revenue sufficient time to produce the same. The ld. SDR submits that the document was not available. Nobody is present representing the respondents. 5. emsp After carefully considering the case records, we find that the appeal is on a factual ground. Whereas, in the impugned order the Appellate Commissioner noted that the permission granted by the Development Commissioner, covered the goods cleared to DTA, the appeal is on the basis that the permission of the Development Commissioner did not cover such goods. We find that the revenue has not been able to substantiate the ground taken by it in the appeal. In the circumstances, we sustain the impugned order and dismiss the appeal filed by the revenue. (Operative part of the Order pronounced in Open Court on 17-7-2008)
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