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Central Excise - Case Laws
Showing 41 to 60 of 182 Records
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2009 (10) TMI 784
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... ... ..... of the inputs which are consumed by the White Field unit. We find that if the demand has been worked out based upon the value of the goods cleared to the White Field unit, the value per MT of the goods which was cleared, worked out based upon the cost of production i.e. the total cost of production divided by total production during the relevant period. If that be so and if it is the contention of the Revenue that the confirmation of the duty is on the clandestine removal of goods, then such goods need to be accounted as the production and to be added to the total production of the unit. We find that if that is done, the cost of production per MT will be substantially less. If that be so, we find that the appellant has made out a prima facie case for the waiver of the pre-deposit of the amounts involved. Accordingly, the condition of pre-deposit of the amounts involved is waived and recovery thereof stayed till the disposal of the appeals. (Pronounced in Court on 30-10-2009)
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2009 (10) TMI 782
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... ... ..... set aside the appellate Commissioner rsquo s remand order and allow these appeals on the above ground. As held by the Hon rsquo ble Supreme Court, the appellate Commissioner can exercise the powers of the original authority and deal with the refund claim accordingly. In the peculiar facts and circumstances of this case, it is necessary that this case be remanded forthwith to the Commissioner (Appeals), especially when the assessee rsquo s appeal filed against the Assistant Commissioner rsquo s order which was passed pursuant to the appellate Commissioner rsquo s remand order is presently pending before the appellate authority. Learned Commissioner (Appeals) shall give the assessee a reasonable opportunity of adducing documentary evidence in support of the refund claim and thereafter dispose of the claim in accordance with law after giving the claimant a reasonable opportunity of being personally heard. The miscellaneous application also gets disposed of. (Pronounced in Court)
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2009 (10) TMI 781
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... ... ..... on is not required to file the written application for condonation of delay along with the appeal. Undoubtedly, as a matter of rule, every appellant approaching the appellate authority after the expiry of period of limitation has to file the application for condonation of delay along with the appeal. But in a case where the appellants genuinely and under mistaken belief file an appeal beyond a period of limitation and make an attempt to amend his mistake by taking appropriate steps, he should not be penalized for bona fide mistake committed in that regard. In the facts and circumstances, therefore, we find that the impugned order is liable to be set aside and the matters are required to be remanded for the decision in accordance with the provisions of law. Hence the appeals are allowed. The delay in filing the appeals is condoned and the Commissioner (Appeals) is directed to deal with the appeals in accordance with the provisions of law. Appeals accordingly stand disposed of.
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2009 (10) TMI 779
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... ... ..... o withholds it. rdquo 7. Appellant has failed to establish the fact claimed by them before the Hon rsquo ble Tribunal and in particular the claim that the resultant goods were exported under bond. Under these circumstances, I do not find that the learned original authority has violated the principles of judicial discipline. rdquo 6. In view of the fact that the appellants did not declare all the facts correctly before the Tribunal which led the Tribunal to allow the appeal, and in view of the fact that it was subsequently found that the appellants had claimed rebate on the exports made, the lower authorities have correctly rejected the refund claim. 7. Further, granting refund to the appellant in this case, would amount to unjust enrichment and also leads to a situation where the assessee will be benefited because of misdeclaration made by them before this Tribunal and such situation cannot be allowed. 8. Accordingly, the appeal is rejected. (Dictated and Pronounced in Court)
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2009 (10) TMI 778
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... ... ..... ce in cases of short levy is invokable only after finalization of provisional assessment is made. Section 11A also provides that in the case of provisional assessment, the relevant date would be the date of finalization of the provisional assessment and the show cause notice can be issued within one year there from. As such, we set aside the erroneous order passed by the lower appellate authority and allow the appeal of the department. 5. The cross objection filed by the respondents is also allowed as the only grievance made therein is that the lower appellate authority decided the case without going into the merits of the case which is also the grievance of the revenue. 6. The impugned order is set aside, the appeal and cross objections are allowed with the direction that the lower appellate authority shall hear and decide the case on merits after giving reasonable opportunity for hearing to both sides. (Operative part of the Order pronounced in the open Court on 15-10-2009)
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2009 (10) TMI 775
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... ... ..... pot. As the applicant is availing the benefit of the Circular, therefore, is bound by the terms of the condition of the Circular. Hence, we find no infirmity in the impugned order whereby demand by invoking the extended period of limitation is confirmed and penalty was imposed. 5. In respect of the demand of interest, we find that in the adjudication order, the demand is for recovery of interest at appropriate rate without mentioning any Section of the Central Excise Act. Further we find regarding the demand of interest, the appellants had not made any contention before the adjudicating authority as pleaded before us. Therefore, the matter in respect of demand of interest requires reconsideration by the adjudicating authority. The issue regarding the demand of interest is remanded to the adjudicating authority to decide afresh after affording an opportunity of hearing to the appellants. The Appeal is disposed off in the above terms. (Dictated and pronounced in the open Court)
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2009 (10) TMI 774
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... ... ..... the factory and they were testing and during testing the electricity was consumed. This explanation is not acceptable in view of the units consumed during this period. As the Appellants are claiming abatement from payment of central excise duty on the ground that their unit is closed hence the onus is on the Appellants to show that their unit remained closed during that period. We find that the Revenue Authorities found that during this period the unit was running and as their electricity consumption is even equal to the period in which the unit was running therefore the contention of Appellants that their unit was closed is not acceptable in view of the evidence on record which shows that unit was running. Further we find that grant of abatement is not a mere formality. It requires to be decided by taking relevant facts into account. In view of the above discussion we find no infirmity in the impugned order the Appeal is dismissed. (Pronounced and dictated in the open court)
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2009 (10) TMI 772
Waiver and stay applications - Held that:- Taking into consideration the entire facts and circumstances of the case, it is provided that on a deposit of ₹ 10,000/- as cost with the adjudicating authority at Kanpur within a period of two weeks, it shall be open to the petitioners to approach the Tribunal along with the certified copy of this order and the receipt of the deposit of ₹ 10,000/-. If such an application is filed before the Tribunal, the Tribunal shall hear and re-examine the waiver and stay applications on merits after giving an opportunity of hearing to the petitioners in the light of the observations made above, in accordance with law.
It is made clear that if the petitioners fail to deposit the cost as stipulated above within the stipulated period of time, the present writ petition shall stand dismissed. If the petitioners comply with the order of this Court, the Tribunal shall rehear and redecide the stay and waiver application preferably within a period of two months.
It has been brought to our notice that due to non-compliance of the impugned order, the appeal filed before this Court has been dismissed. Since the said order has been set aside, the appeal is also restored back to its original number subject to the fulfilment of the above conditions.
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2009 (10) TMI 771
Whether equal penalty under Section 11AC is not imposable on the assessee merely on the ground that the duty has been deposited before the issue of show cause notice ?
Whether in the facts and circumstances of this case, Section 11AC of the Act would be applicable so as to attract the provisions of interest and penalty under Section 11AC as well as 11AB of the Act?”
Held that:- In the light of the absence of findings of clandestine removal of goods or any fraud, mis-representation, suppression of facts with the intention to evade duty, Section 11AC of the Act read with Rule 25 the Rules would not get attracted as has been held by the Hon’ble Supreme Court in the case of Rajasthan Spinning and Weaving Mills’s case (2009 (5) TMI 15 - SUPREME COURT OF INDIA).
The question of law at ‘A’ is answered in favour of the revenue. It is held that Section 11AC of the Act would be attracted and the amount of penalty equivalent to the amount of duty becomes imposable. There is no discretion vested in the assessing authority, appellate authority or the Tribunal to reduce the penal amount except in the circumstances contemplated by various provisos to Section 11AC of the Act. Having answered the aforesaid question in favour of the Revenue, the other question whether Section 11AC of the Act is attracted to the facts of the present case has to be answered against the Revenue and in favour of the dealer.
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2009 (10) TMI 770
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... ... ..... erest on the appellants. We have also observed during the discussions that in some places we have not found sufficient evidences which may be available in the records but may not have been discussed in the order. Therefore, we feel that matter is required to be reconsidered by the Original Adjudicating Authority in respect of these appellants. While remanding the matter we would like to make it clear that the Commissioner should take note of observations regarding the provisions of law and quality of evidences but we would like to make it clear that we are not expressing any opinion as regards the conclusions. We also would like the Commissioner to consider the liability of GCUL in greater detail and only if he finds that legally there cannot be a liability on GCUL, consider liability of appellant companies. Accordingly, the impugned order is set aside and matter is remanded back to the Original Adjudicating Authority for fresh adjudication. (Pronounced in Court on 8-10-2009)
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2009 (10) TMI 769
Clandestine removal - demand based on presumption - Held that: - no cogent evidence having been brought to record to suggest deal of all the three parties with intimate connection or nexus of each other. This proves that the proceeding has been ill founded - There cannot be any presumption or suspicion for an arbitrarily taxation without any cogent evidence being brought to record - appeal dismissed - decided against Revenue.
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2009 (10) TMI 768
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... ... ..... tice and the Committee of Commissioners while examining the quasi-judicial order should not have made a casual approach to simply sanction appeal without stating reasons for sanction to meet scrutiny by higher Courts. This ground alone is reasonable to dismiss appeal of Revenue. Accordingly Revenue rsquo s appeal is dismissed not being maintainable. (Order dictated and pronounced in the open Court).
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2009 (10) TMI 767
Penalty u/r 26 - CENVAT credit - waste generated during the course of manufacture - after the goods were cleared from the factory of IIL, they were diverted to the Viramgam/lndore based Hard Binding wire factories, who were not in the cenvat chain - Held that: - the only ground for enhancing the penalty was that as per Rule 26(2)(i) of the Central Excise Rules, any person issuing excise duty invoice without delivering the goods specified therein or abets in making such invoice is liable to a penalty not exceeding the amount of such benefit or ₹ 5000/-, whichever is greater. At the outset, it was submitted that Rule 26(2) was inserted on 1-3-2007 & the period of dispute in the instant case is from October, 2003 to March, 2004. Hence, penalty cannot be imposed under the provision non-existent during the relevant period - appeal dismissed - decided against Revenue.
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2009 (10) TMI 766
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... ... ..... hat the disputes decided relate to clearances made by the assessee during 9-4-99 to 31-10-99 and 16-9-99 to 31-10-99 (EOU). Irregularities in computation of duty paid on the clearances were gathered from the returns of the assessee. The allegations of short payment observed had been adjudicated and the dispute decided in favour of the appellant. Therefore, there could be no valid proceedings to demand further differential duty in respect of the same clearances after about four years of clearances. In the circumstances, we find that the impugned demands raised on the allegation that the appellant EOU had cleared finished goods using Modvat credit balance and short paid duty by wrongly adopting value under Section 4A(1) of the Act instead of proviso to Section 3(1) of the Act cannot be sustained. In the circumstances, we vacate the demands and penalties ordered against the appellant and allow this appeal. (Operative portion of this order pronounced on conclusion of the hearing)
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2009 (10) TMI 765
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... ... ..... e authorities below, which show to have arrived at a concurrent finding that, the product in question is an excisable commodity being of the nature having potentiality for generation of electricity, it is difficult to accept the contention on the part of the appellants that the product cannot be classified as excisable one. Prima facie, no case has been made out for total waiver of the duty demanded in the matter. 5. In the facts and circumstances of the case, therefore, the application for stay is partly allowed and bearing in mind the financial hardship as well as the Revenue rsquo s interest, the appellants are directed to deposit a sum of Rs. 2,50,000/- (rupees two lacs and fifty thousand only) within a period of six weeks from today and on such deposit being made, the pre-deposit of the remaining amount of duty and penalty, demanded under the impugned order, shall stand waived till the disposal of the appeal. 6. To come up for reporting compliance on 27th November, 2009.
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2009 (10) TMI 763
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... ... ..... at cost of transportation if shown separately in the invoices, the same is to be excluded. He also cites several decisions in support of his contention, which are listed below - (i) Baroda Electric Meters Ltd. v. Collector of Central Excise - 1998 (94) E.L.T. 13 (S.C.) (ii) Escorts JCB Ltd. v. CCE, Delhi-II - 2002 (146) E.L.T. 31 (S.C.) (iii) Andhra Sugars Ltd. v. CCE, Guntur - 2007 (212) E.L.T. 48 (Tri.-Bang.) (iv) Solaris Chemtech Ltd. v. CCE, Mangalore - 2004 (178) E.L.T. 966 (Tri.-Bang.). 4. We have considered the submissions made by both the sides. Contrary to the submissions in the appeal memo, the purchase order gives the price ex-works of the respondents and clearly shows that transportation charges are extra. Further, as rightly submitted by the learned Advocate, the CBEC Manual as well as several decisions cited by the respondents support their case. Therefore, we find no merit in the appeal filed by the Revenue and accordingly reject the same. (Pronounced in Court)
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2009 (10) TMI 761
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... ... ..... ession against the party, in as much as, nothing contained in such account was liable to be disclosed in the returns. Therefore, in my view, the allegation of suppression raised in the show-cause notice is of no significance. In my considered view, in order to set the record straight, the original authority should re-adjudicate the case in the correct perspective, after giving the party a reasonable opportunity of being heard. As the department has no case that the appellants had any intention to evade payment of duty, the adjudicating authority should judicially work out a device to set the record straight without monetary loss to either side. 7. It is made clear that, in the absence of any appeal of the department against the dropping of penalties, it shall not be open for the original authority to impose any penalty on the assessee. 8. With these observations, I set aside the orders of the lower authorities, and allow this appeal by way of remand. (Pronounced in the court)
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2009 (10) TMI 760
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... ... ..... proof of discharge of duty liability by the said supplying unit. I do not find any error in the Commissioner (Appeals) accepting the said declaration in the invoices as sufficient proof of discharge of duty liability by the said supplying unit. 6. In the case of Mahajan Steel Tubes relied upon by the learned Advocate, it has been held that as the respondents availed credit on the strength of invoices, where it was mentioned that the goods were cleared under Rule 96ZP of the Central Excise Rules, credit cannot be denied on the ground that manufacturer of inputs has not paid the appropriate duty. It was also held that if there was any dispute regarding payment of appropriate duty by the manufacturer of inputs, the Revenue can proceed against the said manufacturer. The said decision stands upheld by the Hon rsquo ble High Court of Punjab and Haryana High Court. 7. In view of the above, I do not find any merits in the appeal by the Department. Accordingly, the appeal is rejected.
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2009 (10) TMI 759
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... ... ..... d by the Central Excise Officer, it has become final assessment and without challenging the final assessment, the refund claim should not be entertained. 4. Heard. 5. On perusal of the record and submissions made by the learned SDR, I find that as per the provisions of Section 35 of the Central Excise Act, the appeal is to be preferred against the order passed by the Central Excise Officer is challengeable. In this case, the Central Excise Officer, has not passed, any order or any order of accepting the decision, there is no question of challenging the same. Further, also, the respondent cannot challenge his own assessment. Moreover in the facts and circumstances of the case it is revealed that there was a clerical error. Due to that clerical error, the refund claim was reasoned. In such an event the assessment is need not to be challenged. With these findings I do not find any merit in the appeal, the same is dismissed and the impugned order is upheld. (Pronounced in Court)
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2009 (10) TMI 756
Rebate claim - export of goods - N/N. 10/2003-C.E., dated 1-3-2003 - Section 5A of the CEA, 1944 - Held that: - the provisions of Section 5A(1A) are apparently clarificatory in nature and, therefore, it cannot be said that they would not apply to the cases relating to the period prior to 13th May 2005. The applicability thereof would obviously depend upon the facts of each case. However, in the case in hand, even if we assume its applicability to the facts of the case, the conclusion which is to be arrived at cannot be different from the one arrived at by the Commissioner (Appeals) - the respondent would be entitled to get the same appropriated for the purpose of clearance of the duty liability and for the same reason they would be entitled to claim the rebate under Rule 18.
It is true that in terms of sub-rule (1) of Rule 6 of Cenvat Credit Rules the final product being exempted from duty liability, the manufacturer would not be entitled to avail credit in relation to the duty paid on the inputs procured for utilization thereof in the manufacturing process of the final product. However, sub-rule (5) of the said Rules which was in force at the relevant time, clearly provided that the provision to sub-rule (1) would not be applicable in case the exempted goods were cleared for export under bond in terms of the provision of the Central Excise Rules, 2002. Considering the said provision, certainly the assessee could have availed the benefit under the said provisions and therefore, it cannot be said that the respondent would be disentitled for the rebate on the said ground.
Appeal dismissed - decided against Revenue.
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