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Central Excise - Case Laws
Showing 81 to 100 of 326 Records
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2008 (7) TMI 754
Penalty - Valuation - Held that: - there was no deliberate intention to evade payment of duty. It is the only method of valuation which was under dispute. Once the dispute has been settled and the assessee had paid the duty along with interest, therefore there was no reason for imposition of penalty - appeal allowed - decided in favor of appellant.
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2008 (7) TMI 753
Liquor - Exemption ... ... ... ... ..... sed in oil or grease treatment of textile material, leather and fat liquor as the process whereby the oils are incorporated into leather so that the leather attains desired softness. They have come to the above conclusion also relying on test results of impugned goods according to which the goods are composed of vegetable fatty oils, organic surface active agents and additives which find use as fat liquoring agent in the leather industry. 7. emsp Therefore, we do not find any reason to interfere with the decision of the Commissioner (Appeals) in confirming the demand of duty. However, we find that the case to be one which involves pure interpretation of notification and no mala fide can be attributed to the assessee and therefore imposition was not justified. 8. emsp Therefore, we hold that the duty demand is to be upheld and the penalty is not warranted. As a result, the appeal of the party and the appeal of the department are rejected. (Pronounced in the Court on 16-7-2008)
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2008 (7) TMI 750
Demand and penalty - Cenvat/Modvat ... ... ... ... ..... paid has been claimed by the suppliers of the goods and irrespective of the fact that the value of the goods has gone down on account of packing, they have availed the credit of actual duty paid by the supplier. It is well settled that though the credit of ldquo duty paid rdquo is available and not the credit of duty ldquo payable rdquo . 3. emsp We fully agree with the above contention of the learned Advocate. Admittedly, the duty paid at the supplier rsquo s end stands availed as credit by the assessee and the supplier has not sought re-assessment at their end. The assessable value on account of packing cannot be varied at the end of receiver of the goods. As such, we do not find any justification for denying the Modvat credit on above count. We accordingly, set aside the confirmation to the above extent and imposition of penalty except to the extent of Rs. 20,000/-. The appeal is disposed of in above terms. (The operative part of the order was pronounced in the open Court)
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2008 (7) TMI 749
Cenvat/Modvat - Inputs - Job work - Held that: - the goods which were cleared by the job worker after processing under Notification No. 214/86-CE, the principal manufacturer is clearing the same on payment of appropriate duty. The provisions of Rules 57C and 57CC of Central Excise Rules and Rules 6 of Cenvat Credit Rules are similarly worded, the question referred is answered in favour of the assessee - appeal dismissed - decided against Revenue.
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2008 (7) TMI 748
Confiscation and redemption fine ... ... ... ... ..... ne imposed, even if they are not available for confiscation. In view of these conflicting decisions, the matter is required to be referred to the Larger Bench to decide the following issue Issue Whether the goods can be confiscated and redemption fine imposed even if they are not available for confiscation (excluding the cases where the goods are initially seized and provisionally released) as held by the Tribunal in the case of Venus Enterprises v. CCE - 2006 (199) E.L.T. 661 (Tri.-Chennai) or the same cannot be confiscated and fine in lieu of confiscation cannot be imposed as held by the CESTAT in the case of Ramkhazana Electronic - 2003 (156) E.L.T. 122 (Tri.-Del), Shiwalya Spinning and Weaving Mills (P) Ltd. - 2002 (146) E.L.T. 610 (Tri.-Del), Prudential Pharmaceuticals Ltd. - 2001 (136) E.L.T. 1057 (Tri.-Chennai). The registry is requested to put up the matter before the President, CESTAT to constitute the Larger Bench to decide the above issue. (Pronounced in the Court)
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2008 (7) TMI 747
Appeal - Finality of order - Adjudication ... ... ... ... ..... y has been brought on record and the chemical solutions, which are used by them in their laboratory. There being no findings on this point, all the appeals are allowed by way of remand to the adjudicating authority to reconsider the issue in all these cases without getting influenced by the findings in order-in-original No. 5/2000 dated 26-6-2000. The adjudicating authority shall apply his mind independently on the submissions made by the appellants as regards the marketability of the products and give a detailed and speaking order on the issue. 19. emsp Accordingly, all the appeals are allowed by way of remand to the adjudicating authority. The adjudicating authority will reconsider the issue after granting an opportunity of personal hearing to the appellants. The Counsel undertakes to appear before the adjudicating authority as and when called for personal hearing. All the appeals are allowed by way of remand to the adjudicating authority. (Pronounced in Court on 11-7-2008)
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2008 (7) TMI 746
... ...
... ... ..... that where this margin of difference varies considerably, some averaging may have been done. The issue has not been considered in proper perspective in the light of the guidelines given by the Board. Under these circumstances, we deem it proper to set-aside the order of the Commissioner (Appeals) and order of the original authority to enable consideration of the entire issue afresh by the original authority. The appellant is directed to file written submissions along with evidence, if any, relied upon by them within two months from the date of receipt of this order. The original authority thereafter will decide the matter within two months from the date of expiry of the time limit given for filing written submissions. He shall decide after giving reasonable opportunity of hearing. We leave all issues open. We express no views on merits of the case. 8. emsp Appeal is allowed by way of remand on the above terms. Operative portion of the order was pronounced in the open Court .
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2008 (7) TMI 745
Demand - non-challenge of Assessment order - Held that: - It is the fact the Bills of Entry were finally assessed by the authorities and duty liability was discharged by the respondent. Subsequently, short levy demand under Section 28 has been raised from the appellant, which is unsustainable on the ground that the assessment of the said B.O. Entry has not been challenged by the authorities - since the Revenue has not challenged the assessment of the Bills of Entry, the impugned order, vide which the Order-in-Original has been set aside is correct and does not suffer from any infirmity - appeal dismissed - decided against Revenue.
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2008 (7) TMI 744
Redemption fine - Quantum of - Storage outside factory ... ... ... ... ..... s had properly prepared the delivery challan, which indicates removal of such goods from the factory premises of the appellant was for storage in warehouse. All this indicates that there was no intention of the appellant to remove the goods clandestinely. We are of the view that the goods on which the duty has not been discharged but removed from the factory premises are liable for confiscation and uphold the order of the confiscation of such goods. As regards the question of redemption fine, considering the fact that the factory of appellant was in the nascent stage, we are of the considered opinion that ends of justice would be met, if the redemption fine is reduced to Rs. 3 lakhs. 5. emsp Accordingly, we modify the impugned order to the extent that the redemption fine imposed upon the appellant is reduced to Rs. 3 lakhs. Except for the above said modification, the impugned order is upheld and the appeal filed by the appellant is rejected. (Dictated and pronounced in Court)
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2008 (7) TMI 743
Valuation - Related persons ... ... ... ... ..... out. The valuation adopted by the appellant under Section 4(l)(a) is held to be correct in the case of HIM and the Valuation Rules as alleged in the case are not applicable in the given facts and legal position of the issue involved. rdquo 4. emsp The Revenue in their memo of appeals have again reiterated the grounds as regards the valuation since the respondents M/s Him Gears (P) Ltd. have to be treated as related persons, inasmuch as, the Directors in both the cases being uncle and nephew. We find that the two units are Limited companies having independent existence and the sales made by one cannot be held to be same sale to their related persons. Apart from the above, we do not find an effective rebuttal to the finding of the Commissioner (Appeals) that the prices are more or less the same or even higher than the prices charged from independent buyers. As such, we find no merits in the present appeals filed by the Revenue and reject the same. (Pronounced in the open Court)
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2008 (7) TMI 741
Refund claim - Finality of proceedings ... ... ... ... ..... The earlier proceedings having been attained finality by the ultimate order of the Hon rsquo ble Supreme Court, it is not open to us to disturb the said order of the Hon rsquo ble Apex Court by deviating to a different route. Admittedly, the demand stands confirmed against the appellants and allowing of refund of the same would amount to defeat and virtually setting aside the earlier order confirming demand against the them. No power and jurisdiction are vested in the Tribunal to do so, as against the jurisdiction of the Hon rsquo ble High Court in terms of the Article 226 writ jurisdiction, which stand exercised on the above referred judgments. We also note that the facts in the relied upon cases are slightly different from the present case, inasmuch as, in the present case, the matter was taken right upto Supreme Court and confirmed by the Apex Court. As such, we find no merits in the present case and uphold the order of the authorities below. (Pronounced in the open Court)
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2008 (7) TMI 740
Stay/Dispensation of pre-deposit ... ... ... ... ..... r project. The Commissioner denied the benefit of exemption on the ground that the appellant has not registered themselves with the Customs authorities under Project Import Regulations, 1986 applicable to import of goods under Chapter 98.01 as project imports. 3. emsp Prima facie, we are of the view that the condition regarding equal tax treatment for goods imported and the goods locally produced and supplied under international competitive bidding is satisfied in this case. We are also of the, prima facie, view that the question of fulfilling the conditions of Project Import Regulations in respect of goods manufactured in India and supplied to projects undertaken in India does not arise. Therefore, we hold that the appellant has made out a, prima facie, case in their favour and accordingly waive pre-deposit of the dues as per the impugned order and stay recovery thereof till the disposal of the appeal. (Dictated and pronounced in the open Court on the 31st day of July, 2008)
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2008 (7) TMI 739
Demand - Limitation - Extended period, invocation of ... ... ... ... ..... are unable to accept the reasoning advanced by the Commissioner that the assessee was required to submit revised modvat declaration, classification list etc. and therefore suppression can be invoked. It is also seen that they had filed classification list on 27-1-94 wherein they had indicated that they are manufacturing interchangeable tools for hand tools with brand name ldquo Drillwell rdquo . They also submitted price list during January 1994. In view of the above, it is quite clear that the department had sufficient information and therefore, suppression/misdeclaration cannot be invoked with regard to the demand. Since the appellants had no intention to evade duty and kept the department informed of all the developments, whenever it was required, the penalty also cannot be upheld. 5. emsp In the result, the appeal filed by the party is allowed as far as penalty and application of extended period of 5 years under Section 11A is concerned. (Pronounced in Court on 30-7-2008)
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2008 (7) TMI 737
Cenvat/Modvat ... ... ... ... ..... sufficient, in terms of the Larger Bench decision of this Tribunal in Eicher Tractors v Commissioner of Central Excise, Jaipur - 2005 (189) E.L.T. 131 (Tri.-LB). 2. emsp On hearing both sides, and perusing the records, I agree with the appellants that the Larger Bench decision holding that the provisions of Rule 3(5) of the Cenvat Credit Rules, 2004 would apply even in respect of capital goods or inputs removed as such prior to introduction of Rule 3(5). The Larger Bench decision relies upon a circular dated 25-4-2005. If Rule 3(5) existed in the statute book during the period in dispute, there would have been no need to take recourse to the circular of the Board dated 25-4-2005 for the reason that the appellants would have contended that reversal of credit was in accordance with the existing rules namely Cenvat Credit Rules, 2001. I therefore set aside the impugned order and allow the appeal following the ratio of the Larger Bench decision cited supra. (Pronounced in Court)
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2008 (7) TMI 734
Rectification of mistake - Error apparent on records ... ... ... ... ..... 11-5-2001, before insertion of Section 11AB of the Act, which would be the crucial date for deciding recovery of the interest. 4. emsp After hearing both the sides, it is seen that the Tribunal passed the order on wrong facts while setting aside recovery of interest. Therefore, the Final Order dated 15-1-2008, in so far as setting aside of the recovery of interest, is recalled. 5. emsp In view of the above discussion, the Final Order No. 482/08-SM(BR) dated 15-1-2008, is amended. The words at paragraph 6, rdquo Accordingly I set-aside the impugned order in so far as the recovery of interest rdquo would be deleted and substituted by the words, ldquo As there is a dispute of facts of reversal of credit and applicability of the Section 11AB of the Act, the matter is remanded back to the Commissioner (Appeals) to decide afresh after considering the facts and law of the case rdquo . The ROM application is disposed of in the above terms (Dictated and pronounced in the open court.)
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2008 (7) TMI 733
Demand and penalty ... ... ... ... ..... rm of evidence of procurement of other inputs. The appellant appears to have steered cleared of this area. Yet another crucial observation made by the ld. Commissioner (Appeals) pertains to the estimate of profit allegedly earned by the respondents. The SCN alleged that, out of scrap costing Rs. 32.5 lakhs, re-rolled products of value of Rs. 33.2 lakhs could be manufactured leaving a profit of just Rs. 78,679/- to the respondents. The ld. Commissioner (Appeals) has refused to accept the view that the respondents could have ventured into the exercise of clandestine manufacture of goods for the sake of this kind of a profit. The Appellate Commissioner rsquo s impression is seemingly prudent. The appellant has not placed on record any material to dislodge the findings of the Commissioner (Appeals) as untenable. 5. emsp The SCN made allegations and this appeal makes lamentations. The impugned order is sustained and this appeal is dismissed. (Dictated and pronounced in open Court)
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2008 (7) TMI 729
Refund - Unjust enrichment ... ... ... ... ..... here is a proof with the department to show that the duty has been subsequently recovered. It is an admitted fact in the present case that duty was paid at the time of clearance and the goods were thereafter seized from the office premises of the respondents on the belief that duty was not paid and they were forced to pay duty second time on the same goods. The revenue itself has accepted that the goods were initially cleared on payment of duty and therefore the demand of duty, redemption fine and penalty all have been set aside. In such a situation, the question of recovery of duty does not arise when the initial payment of duty is accepted and refund is not being claimed of the initial duty paid and duty is paid second time. The plea of unjust enrichment does not sustain at all. The Commissioner (Appeals) rsquo s order is accordingly set aside and the appeal filed by the revenue is rejected with consequential relief to the respondents. (Pronounced and Dictated in the Court)
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2008 (7) TMI 728
Valuation - Glues - Section 4A of the Central Excise Act - Held that: - Larger Bench in in Commissioner of Central Excise, Mumbai v. Urison Cosmetics Ltd. [2006 (2) TMI 19 - CESTAT, MUMBAI], held that as cosmetics were to be sold by weight or volume, quantities of Cosmetics weighing less than 10 gms, even though contained in multi-pack sachets, would be exempt under Rule 34(b) ibid. from the requirement of declaration of MRP and thereby from the application of Section 4A of the Central Excise Act - as the subject goods (glues) are required under the Standards of Weights and Measures Act, 1976 to be sold by weight and, by reason thereof, the goods in the form it was removed during the period of dispute would be exempt under Rule 34(b) from declaration of MRP - appeal dismissed - decided against revenue.
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2008 (7) TMI 727
Interest on delayed refund of pre-deposit - Rate of interest ... ... ... ... ..... ment of interest 12 p.a. on an amount of pre-deposit belatedly refunded to the party. Our attention has also been invited to the Board rsquo s Circular No. 802/35/2004-CX, dated 8-12-2004, wherein the field formations were advised to return pre-deposits within 3 months from the date of the relevant order passed by the appellate Tribunal/Court unless there was stay against such order by a superior court. The circular further obligated the department to pay interest in the event of delayed refund, on the amount of pre-deposit refunded. It was also stipulated that such interest should be paid for the period beyond the aforesaid period of 3 months. This circular of the Board was issued in the wake of the Hon rsquo ble Supreme Court rsquo s decision in ITC case. 3. emsp In the above scenario, the appellant cannot resist payment of interest ordered by the lower appellate authority. The impugned order is sustained and this appeal is dismissed. (Dictated and pronounced in open Court)
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2008 (7) TMI 726
Classification ... ... ... ... ..... , 7212.90, 72.25 and 72.26 are of general nature. The goods under dispute are general purpose wear plates are reproduced below as submitted by the appellant would make it clear that the same are general purpose plates. emsp Such goods would merit classification under Chapter Heading 72.10, 72.12, 72.25 and 72.26 depending upon the nature of the base metal used as plates. Accordingly I pass the following order rdquo . 5. emsp We find that as against above factual findings no contrary evidence is brought on record. It is also seen from records, the respondent cleared consignment of flat rolled products if used in a specific machinery, as parts of that machine. Whenever the plates are cleared by them for general purpose the same were classified under Chapter 72. We find ld. Commissioner (Appeals) has given very detailed order which in our view is correct and does not require any interference. 6. emsp Accordingly, the appeals filed by the Revenue are rejected. (Dictated in Court)
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