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Central Excise - Case Laws
Showing 61 to 80 of 182 Records
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2009 (10) TMI 755
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... ... ..... he order to that extent. Undisputedly, on those grounds the amount directed to be recovered is to the extent of Rs. 3,71,763/-, out of total amount demanded to the tune of Rs. 10,07,183/-. Obviously, therefore, the appellants will have to deposit a sum of Rs. 6,35,410/- as well as the amounts which are payable on account of denial of Modvat credit. In the facts and circumstances of the case, the question of insistence for payment of interest amount or penalty amount, at this stage, does not arise. Hence, the application is partly allowed whereby the applicant is directed to deposit a sum of Rs. 6,35,410/- (rupees six lacs thirty five thousand four hundred and ten only) within a period of eight weeks from today. On deposit of the amount, the amount demanded in relation to interest and penalty under the impugned order shall stand waived till the disposal of the appeal. The application stands disposed of accordingly. 5. To come up for reporting compliance on 14th December, 2009.
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2009 (10) TMI 754
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... ... ..... e decision of the Tribunal in the case of M/s. Swastika Concab (I) Pvt. Ltd. v. CCE, Jaipur vide Final Order No. 268/09-SM, dated 24-3-09 2009 (246) E.L.T. 448 (Tribunal) is appreciable. Therefore, enquiry was conducted to the rest of the refund of Rs. 60,338/- claimed in the course of hearing of the Appeal. Reading of page 63 and page 65, of the appeal folder it appears that the Appellant has discharged its burden of proof as to no unjust enrichment made by him. When such evidence was led there was nothing on the part of the Revenue on record to contradict such evidence and even in para-6, while dealing with evidence claimed by Appellant supporting its case nothing has been repelled. Once evidence is led by Assessee is not repelled that stands to speak and admits the claim of the Appellant. Therefore, the appellant is entitled to the refund of Rs. 60,338/- for no unjust enrichment made by him. Accordingly, the appeal is partly allowed. (Dictated and pronounced in open Court)
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2009 (10) TMI 753
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... ... ..... I find that issue, whether the appellant can use credit or not, is not relevant. The question to be considered is whether the credit is available or not. Since the issue is covered by the precedent decision of the Tribunal in the order Nos. A/1773-1774/WZB/AHD/2009 dated 31-7-2009 and stay petition is allowed unconditionally. 3. Since the issue is already covered by the precedent decision, with the consent of both sides, appeal itself is taken for final decision. 4. As already mentioned above, taking credit and utilizing the same are two different aspects. If the credit cannot be used since final products are exempted, appellants cannot be denied the benefit of taking credit which is admissible. As rightly pointed out by the learned advocate appearing for the appellants, POY was received after rejection and there is no dispute that such POY had suffered NCCD also. Therefore, I find no merits in the impugned order and accordingly the same is set aside. (Dictated in the Court)
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2009 (10) TMI 751
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... ... ..... with the requirement of law by the conduct of delayed payment. But learned Commissioner (Appeals) was lenient holding that there was mere default to pay Rs. 402 which should not have deprived the appellant to make payment through Cenvat credit thereafter. Once process of law deprives from certain privilege due to break of law, the appellant has to suffer penalty. However, considering that the duty amount has been paid in due course, levy of penalty of Rs. 10,000/- (Rupees Ten thousand) in adjudication appears to be disproportionate for which, the same is reduced to Rs. 1,000/- (Rupees One thousand only) allowing appeal of Revenue partly. (Order dictated and pronounced in the open Court)
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2009 (10) TMI 750
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... ... ..... over. The very factum of finalisation of provisional assessment could give rise to a cause of action for the assessing authority itself for grant of refund without insisting on any formal claim therefor. Such refund would not be governed by Section 11B of the Central Excise Act. In this case, no refund claim was filed by the assessee after finalisation of the provisional assessment. The premature refund claim filed by them soon after provisional assessment cannot be treated as one filed after finalisation of such assessment. In this view of the matter, I hold that the respondent was entitled, upon finalisation of provisional assessment, to refund of the excess duty paid by them, unaffected by the doctrine of unjust enrichment embodied in Section 11B of the Act. The conclusion reached by the lower appellate authority has, therefore, to be sustained though the reason cited by it cannot be accepted. 5. In the result, this appeal of the Revenue gets dismissed. (Dictated in Court)
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2009 (10) TMI 748
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... ... ..... 4 and the Rules made there under, including those relating to refunds and exemptions from duties and imposition of penalty, shall, as far as may be, apply in relation to the levy and collection of the National Calamity duty leviable under this section in respect of the goods specified in the Seventh Schedule as they apply in relation to the levy and collection of the duties of excise on such goods under that Act, as the case may be rdquo . For the aforesaid reasons, the Revenue lsquo s appeal is dismissed. rdquo 8.4 emsp It can be seen from the above reproduced ratio of the Co-ordinate Bench that the exemption extended under Notification 67/95 is available to NCCD. In view of the above findings and respectfully following the decision of the Co-ordinate Bench, we hold that the impugned order is correct and legal and does not suffer any infirmity. The appeal filed by the Revenue is rejected. (Operative portion of this Order was pronounced in open court on conclusion of hearing)
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2009 (10) TMI 747
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... ... ..... e inquiry independently in that regard. We are afraid bearing in mind provisions of Section 12B, no credence could be given to these submission. The burden was squarely upon the appellants to prove that the incidence of duty had not been passed on to the consumers. In the facts and circumstances of the case, it cannot be said that the appellants had discharged this burden. Being so, no fault can be found out in the findings arrived at by the authorities below in relation to failure on the part of the appellants to discharge the said burden. 23. emsp As regards the penalty, we find that there was no justification for imposition of penalty as such. The appellants are, therefore, justified in contending the authorities could not have levied the penalty. 24. emsp The appeal, therefore, partly succeeds as far as it relates to the imposition of penalty is concerned while it is dismissed in relation to all other contentions. The appeal is accordingly disposed of in the above terms.
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2009 (10) TMI 746
Benefit of N/N. 108/95-C.E., dated 28-8-1995 - supply of Chloramphenicol eye ointment I.P. to M/s. Hindustan Latex Ltd. who in turn supplied the same, in pursuance of International Competitive Bidding, to a project funded by International Development Association (IDA) - denial on the ground that IDA was not an organisation listed under N/N. 108/95-C.E. for the purpose of extending exemption.
Held that: - supplies made to IDA ought to be treated as supplies made to World Bank and eligible for the concession envisaged under clause (c) of the proviso to the Notification. Non-mention of IDA in the United Nations (Privileges and Immunities) Act, 1947 does not affect the status of the IDA as part of World Bank. Non-listing of IDA in the United Nations (Privileges and Immunities) Act, 1947 has no relevance to the grant of exemption under the impugned notification as supplies made to World Bank clearly are covered by the notification.
Appeal dismissed - decided against Revenue.
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2009 (10) TMI 743
CENVAT credit - rejected inputs - whether the respondent is eligible to avail the Cenvat credit in respect of inputs received and which were found defective at the time of processing? - Held that: - It is explicitly indicated that the respondent had utilized the inputs in the manufacture of the final product, but such inputs got rejected at the time of testing before removal - the Commissioner has come to a factual finding that the cost which has been recovered them is a cost of the wasted inputs - appeal dismissed - decided against Revenue.
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2009 (10) TMI 742
CENVAT credit - input - welding electrodes - interest - penalty - welding electrodes, whether inputs or capital goods?
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2009 (10) TMI 740
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... ... ..... oner rsquo s order, it has been stated that finished goods involved Cenvat credit of Rs. 1,29,160/- was destroyed. However, in the very next sentence, it has been stated that the value of the goods destroyed was Rs. 20,83,320/- involving duty of Rs. 1,11,862/-. Apparently, there seems to be some mistake in calculation part of the duty. However, learned advocate submits that the appellant is seeking remission of duty of Rs. 1,11,862/- being duty involved in the finished product, which has been admitted by the partner also. It is his submission that instead of remanding the matter for fresh adjudication, the issue may be settled and their claim for remission of Rs. 1,11,862/- be allowed. I agree with the learned advocate that it would meet the justice to both the parties if the claim of remission to the extent of Rs. 1,11,862/- is allowed. I order accordingly. 7. The appeal is allowed in above manner with consequential relief to the appellant. (Dictated and Pronounced in Court)
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2009 (10) TMI 737
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... ... ..... id down by Hon rsquo ble High Court of Delhi, the adjudicating authority has to redetermine the quantum of penalty which has also been wrongly determined by the learned first appellate authority. If there is any excess amount paid towards penalty, that shall be refundable. 6. So far as penalty on Shri Manoj Chand, Partner is concerned, his guilt intention does not come out from SCN. He is not found to be instrumental to defraud revenue. When such circumstance, does not come out, the assessee should succeed and Revenue rsquo s appeal shall fail. 7. In the result, Revenue rsquo s appeals are allowed by a limited extent modifying the first appellate order as indicated above and remanding the matter to learned Adjudicating Authority to re shy -determine the quantum of penalty in respect of M/s. R. Narayan Steel Industries. 8. Cross objection filed by assessee is also disposed off with the aforesaid consequence of Revenue rsquo s Appeal. (Dictated and Pronounced in the open Court)
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2009 (10) TMI 736
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... ... ..... Accordingly, we accept the undertaking and direct the appellant not to alienate the property till the appeal is disposed of and also direct to deposit all the income received by leave or licence/rent out the property with the Revenue till Rs. 15 lakhs directed to be deposited in terms of Section 35F of the Central Excise Act, 1944 is paid. We also direct the concerned Commissioner to issue a ldquo No Objection Certificate rdquo to the effect that the applicant can be permitted to rent out the property. The appellant is also directed to submit a copy of the rental agreement with the Revenue and keep the revenue informed of any changes in the rental agreement or tenant etc. from time to time till the disposal of the appeal. In case of any failure on the part of the appellant to obey the direction in this order, Revenue will be free to take appropriate action as per law to recover the dues. Modification application filed by the appellant is decided as above. (Dictated in Court)
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2009 (10) TMI 735
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... ... ..... ing prescribed by the Notification. The record clearly reveals that input purchased by the Appellant was used for manufacture of capital goods which were ultimately used in relation to the manufacture of finished goods enjoying duty benefit under SSI exemption. It may be appreciated that the goods manufactured beyond the ceiling limit have suffered duty. Therefore denial of the Cenvat credit defeats purpose of law. Therefore Revenue rsquo s Appeal is dismissed. (Dictated and pronounced in open Court)
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2009 (10) TMI 734
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... ... ..... the Cenvat credit accumulated by the units availing the benefit under Notification No. 39/2001-C.E., dated 31-7-2001, as amended, shall only be utilized for payment of duty at the time of clearance of the final product and the refund is not admissible despite the fact that refund of Cenvat credit is admissible under Rule 5 of Cenvat Credit Rules, 2004. 10. However, I find that the clarification dated 3-6-2009 issued by the CBEC deals specifically with the problems faced by the units situated in Kutch District and availing the benefit of Notification No. 39/2001-C.E., dated 31-7-2001. I also observe that while passing the impugned Order, the Board rsquo s clarification on the issue was not available. Therefore, the whole issue needs to be re-examined in the light of the clarification issued by the Board and keeping in view the relevant provisions of the Act and rules. Accordingly, the matter is remanded to the Lower Authority. 11. The appeal is disposed off by way of remand.
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2009 (10) TMI 731
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... ... ..... uarter. So also the appellants must have applied for power connection. Similarly labour records, if any, maintained by the appellants and returns submitted to the labour department may suggest about the activity of the appellant. These are some of the sources of enquiry and not an exhaustive list. Conducting an objective enquiry, learned adjudicating authority can come to a proper conclusion as to whether there was any manufacture carried out by the appellant. If he comes to the conclusion that there was no manufacture, there is no reason for levy of duty at all. 7. With the aforesaid observation, we send the matter back to the learned Adjudicating Authority to enquire and support his decision with evidence in de novo proceeding. 8. In the result, impugned order is set aside and the matter is remanded to the learned adjudicating authority to grant fair opportunity of hearing and decide the matter afresh in accordance with law. (Order dictated and pronounced in the open Court)
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2009 (10) TMI 728
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... ... ..... Sri A.K. Mathur that on the aforesaid deposit and adjustment, the entire amount, directed to be deposited by the Appellate Tribunal, stands deposited but that the Appellate Tribunal is insisting on dismissing the appeal on the ground that the amount was not deposited within the prescribed time i.e. within ten weeks from 17-6-2009. It is contended that since the appellants had preferred the appeals and were awaiting the decision of the High Court, the amount may be treated to be deposited within time for hearing of the appeal. 6. On the facts and circumstances of the case, we partly allow the appeals and condoned the delay in depositing Rs. 5 Crores by M/s. Pan Parag Indian Limited and Rs. 10 Lakhs by M/s. Ekta Flavours Ltd. The appeals pending in the Appellate Tribunal shall not be dismissed on the ground that the amount directed to be deposited by order dated 17-6-2009 has been deposited beyond the period of ten weeks fix by the Tribunal. There shall be no order as to cost.
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2009 (10) TMI 726
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... ... ..... restriction in the Circular. Therefore, I find that Commissioner (Appeals) has correctly applied the circular and reduced the penalty to Rs. 5,77,698/-. 7. However, Hon rsquo ble Supreme Court while deciding the issue in the case of Krishna Processors, has observed that vires of the rules are before various High Courts and therefore they are not going into the vires. This Tribunal has been remanding such issues to the Original Adjudicating Authority with a direction that the Original Adjudicating Authority should await the decision of the Hon rsquo ble Gujarat High Court before whom also the virus of the rules have been challenged and take a decision after the Hon rsquo ble High Court decides the issue. Therefore this matter is also remanded to the Original Adjudicating Authority who shall wait for the decision of the Hon rsquo ble High Court and thereafter decide the issue in accordance with law as declared by the Hon rsquo ble High Court. (Dictated and Pronounced in Court)
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2009 (10) TMI 725
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... ... ..... It is also observed that the crucial fact was suppressed by the assessee in their ER-1 return filed in the month of July, 2005. The invoice issued to the scrap dealer in the previous month clearly mentioned ldquo removed as such rdquo , thereby establishing a link between the invoice and Rule 16 of the Central Excise Rules, 2002. Nevertheless, this aspect was suppressed in the ER-1 return filed in July, 2007 it, therefore, appears that the extended period of limitation was rightly invoked in this case. 7. In the result, the appellant is liable to pay the differential duty with interest (in terms of Section 11AB of the Act). Insofar as the penalty is concerned the appellant has denied having suppressed any fact with intent to evade payment of duty. I have already found that they suppressed a crucial fact. Hence, the penalty to the extent of differential duty has to be sustained. It is ordered accordingly. 8. The appeal is disposed of in the above terms. (Dictated in the Court)
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2009 (10) TMI 724
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... ... ..... Equal amount of penalty was imposed under the same provision on the ground that the returns subsequently filed were not in the proper form. Again, equal amount of penalty was imposed under the same provision on the ground that the correct details of Education Cess etc. were not furnished in the returns. I find that there is no proposal in the showcause notice to impose penalty under Rule 27 at all. Hence, the above total penalty of Rs. 15,000/- imposed on the appellant under Rule 27 is beyond the scope of the showcause, notice. This penalty is set aside. 5. In the result, the appeal is disposed of by holding that the appellant is liable to pay interest on duty at the rate of 13 per annum on the amount of duty belatedly paid for the period January to December, 2005 and is also liable to pay penalty of Rs. 10,000/- imposed under Rule 25. These payments shall be made within a period of 30 days from the date of receipt of a certified copy of this order. (Pronounced in the court)
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