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Central Excise - Case Laws
Showing 81 to 100 of 182 Records
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2009 (10) TMI 723
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... ... ..... to be completed. 6. I find that in this case the department is not able to show that the appellants have received the order and in view of the decision of the Larger Bench cited above, the date of receipt of the order has to be treated as 8-4-2009. Accordingly, the appeal filed before the Tribunal has to be treated as filed within time. The application for condonation of delay therefore is considered as infructuous. 7. In this case the impugned order has been passed dismissing the appeal for non-compliance with the stay order passed by the Commissioner. On this issue since there is already an order of the Hon rsquo ble High Court of Gujarat, the impugned order has to be set aside and the matter remanded to Commissioner (Appeals) who shall proceed to decide the appeal as per the directions of the Hon rsquo ble High Court. Therefore the stay petition is allowed and the appeal is also allowed by way of remand to the Commissioner (Appeals). (Dictated and Pronounced in the Court)
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2009 (10) TMI 720
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... ... ..... sions of Section 4(1)(b) of the Central Excise Act and Central Excise Valuation Rules made thereunder, provisions of Rule 4 will have to be considered first, while going through the entire rules. There is no dispute that M/s. TML has discharged the duty liability on the Net Dealer rsquo s Price which is their sale value as per Rule 4(1)(a) of the Central Excise Valuation Rules. Provisions of Rule 8 may also apply in this case, as there is no dispute that as the appellant is job worker of M/s. TML. Be that as it may, assessable value of final products cleared by appellant, needs to be worked out on the cost of inputs received by M/s. TML, which in our considered view, has been correctly taken. 7. We find that the appellant has made out a prima facie case for the waiver of the pre-deposit of the amounts involved. The condition for pre-deposit of the amounts involved is waived and recovery thereof stayed, till the disposal of the appeal. (Pronounced in open Court on 23-10-2009)
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2009 (10) TMI 718
Refund claim - time limitation - Held that: - the protest given by the manufacturer cannot give benefit of extended time for claim of refund and a buyer has to claim the refund within the stipulated time limit prescribed u/s 11B of the CEA - appeal dismissed - decided against appellant.
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2009 (10) TMI 716
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... ... ..... had also not filed copies of the invoices under which Coal Gas is cleared with the Revenue Authorities. Therefore, the demand is rightly made by invoking the extended period of limitation. 5. We find that in the present case, the show-cause notice was issued in September, 2001 demanding duty for the period September, 1996 to August, 2000 alleging suppression with intent to evade payment of duty. We find that the appellants filed classification list in the year 1993 which was duly approved by the proper officer showing manufacture of coal gas and liability to pay excise duty at nil rate of duty. Thereafter, the appellants also filed classification list in March, 1997. In the circumstances, we find merit in the contention of the appellants that the demand is time barred. Therefore, without going into the merits, we allow the appeal on the issue of time bar and set aside the demand and penalty. The appeal is allowed as indicated above. (Dictated and pronounced in the open Court)
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2009 (10) TMI 715
Waiver of pre-deposit - denial on benefit of N/N. 4/2006-C.E., dated 1-3-2006 as amended by N/N. 37/2006-C.E., dated 20-7-2006 - The case of the Revenue is that the concessional rate of duty is in respect of pure, terephthalic acid and the purified terephthalic acid manufactured and cleared by the applicants is having purity of 99.8% - Held that: - The goods manufactured by the applicants is classified under Tariff Heading 2917 36 00 and having purity of 99.8% - The Flow Chart produced by the applicants in respect of their product shows the process of purification and the product in the market is known as Purified Terephthalic Acid (PTA) and there is no stipulation in the Tariff or in the HSN Explanatory Notes as well as the Notification regarding purity of the product - it is a fit case for total waiver of duty and penalty - petition allowed - decided in favor of petitioner.
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2009 (10) TMI 714
CENVAT credit - capital goods - Ziricon Oxygen Probe - Polymer Conductivity Analiser/Censor - Cable Tray - denial on the ground that the same are not specified goods - Held that: - Board’s Circular dated 2-12-1996 clarifies that the components, accessories of the specified goods irrespective of classification are entitled for credit - the goods in question are used as the components of the plant, therefore, in view of the Board’s Circular relied upon by the appellants irrespective of classification, the benefit is available - credit allowed - appeal allowed - decided in favor of appellant.
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2009 (10) TMI 712
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... ... ..... (Nil) in the returns and the department has duly assessed the same. As the appellant has declared the hard waste in RT12 and C/Ls and the same have been assessed/approved, the contention of the department that the appellant did neither declare the same in C/L nor maintained any account of them, hence they suppressed the fact and as such extended period is invokable, therefore, falls through. I am, therefore, constrained to appreciate the contention of the appellant that the demand is barred by limitation as there is no suppression of fact, mis shy statement, fraud etc. rdquo 2. As the finding of fact arrived at by the Commissioner (Appeals) that the respondents filed classification list in respect of hard waste and also filed monthly return regularly showing clearance at nil rate of duty and this finding of fact is not controverted by producing any evidence. Therefore, we find no infirmity in the impugned order and appeal is dismissed. (Dictated and pronounced in open Court)
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2009 (10) TMI 711
Valuation - demand on the ground that the goods cleared to the other units of the appellants are to be assessed as per the provisions of Rule 8 of Valuation Rules, 2000 - Held that: - the appellants cleared 99% goods to the independent buyers - Some portion of the production is cleared to the other units of the appellants - reliance placed in the decision of Larger Bench, in the case of Ispat Industries Ltd. v. CCEx., Raigad [2007 (2) TMI 5 - CESTAT, MUMBAI], where it was held that where a part of the production is cleared to the independent buyers, the provision of Rule 8 of the Valuation Rules are not applicable in respect of the goods which are cleared to other units - appeal allowed - decided in favor of appellant.
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2009 (10) TMI 710
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... ... ..... nd as the appellants paid a sum of Rs. 45,030.00 on 17-4-98, the date on which they received the said Order, there cannot be any delay attributable to them in regard to the amount so paid. However, since the sum of Rs. 7,505.00 was paid only on 11-6-98, therefore the penalty equal to Rs. 7,505.00 is sustained for the period relating to September, 1997 to March, 1998. 4.2 Regarding the duty liability for the month of April, 1998, it is not disputed that the Order of Determination has been served by the Department on the appellants on 5-5-1998 only. Under these circumstances, their paying the dues on 8-5-1998 along with the interest, is in order. We do not find any delay in payment after determination of the duty liability by the Commissioner. Therefore, the penalty of Rs. 1,32,568.00 relating to the month of April, 1998, cannot be sustained. 5. The Appeal is allowed except to the extent of penalty of Rs. 7,505.00, as indicated above. (Pronounced and dictated in the open court)
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2009 (10) TMI 709
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... ... ..... was availed rightly by complying with all required formalities and it is not mentioned that the payment is being made under production and without prejudice to any of their right. Further, we find that as the Commissioner (Appeals) gave a finding of fact that the inputs are received in the factory and used in the manufacture of goods and the finished goods manufactured out of the inputs in question are cleared on payment of duty. The payment was made to the supplier of inputs through banking channel and these findings are not under challenge in the present appeal. Further, we find in the adjudication order that there is no reference in respect of the present respondents that the supplier of inputs has stated that only modvatable invoices were issued to the present respondents. Suppliers of the inputs are not party to the present proceeding. In view of the above, we find no infirmity in the impugned order and the appeal is dismissed. (Dictated and pronounced in the open Court)
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2009 (10) TMI 706
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... ... ..... ter considering the rival contentions in that regard including the contention on behalf of the appellants about absence of charge in that regard in the show cause notice while deciding the appeal on merits. At this stage, the appellants have made out a, prima facie, case for the grant of stay of the impugned order, they having shown that the amount which is ordered to be recovered relates to the amount which was refunded to them having been found that the said amount was wrongly paid by the appellants. Being so, the impugned order is liable to be stayed and the requirement of deposit thereof is liable to be waived pending the final disposal of the appeal. Hence the application is allowed. The amount demanded under the impugned order as well as interest and the penalty imposed is waived till the disposal of the appeal. It is made clear, that all the above observations are only in relation to the disposal of the application for stay. Application stands disposed of accordingly.
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2009 (10) TMI 705
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... ... ..... t, the legal plea has no leg to stand on. Admittedly, in the instant case, the crucial fact was not pleaded by the party before the original authority or even before the first appellate authority. It has been pleaded before this Tribunal for the first time. In my considered view, the plea of limitation raised before the Tribunal for the first time, which involves mixed questions of fact and law, cannot be entertained. Contextually, I must also clarify that the amendment of memorandum of appeal per se would not entitle the appellant to claim a favourable decision. Even after allowing the appellant to insert the new ground in the memorandum of appeal, this Tribunal has inherent power to consider the maintainability of such ground. For the reasons already recorded, I hold that the plea of limitation is not maintainable at this stage. rdquo 4. The final order passed by this Bench shall be read as amended hereinbefore. 5. The ROM application stands disposed of. (Dictated in Court)
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2009 (10) TMI 702
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... ... ..... fer any satisfactory explanation for the shortage. No evidence of removal of the goods from the factory has been relied upon. While the obligation of an assessee to account for the goods entered in RG-1 register/statutory production register cannot be doubted, the charge of clandestine removal is a serious charge and the same requires to be based on evidence collected through investigation. In the present case, admittedly, no such evidence has been relied upon. In view of the above, the decision of the Commissioner (Appeals) in not upholding the penalty is justified. However, the reasoning adopted the Commissioner (Appeals) for setting aside the penalty namely payment of duty prior to issue of show cause notice may not hold good due to subsequent case laws. Thus, the decision of the Commissioner (Appeals) in not upholding the penalty is justified, though not the reasoning adopted by the Commissioner (Appeals). 7. In view of the above, the appeal by the Department is rejected.
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2009 (10) TMI 701
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... ... ..... 50) E.L.T. 341, the Tribunal has held that capital goods used in the manufacturing process and outside the factory premises are eligible to credit during the relevant period under Rule 57Q. The mines in which the lubricating oils are used for lubricating the machineries such as surface miner, dumper, etc., being captive mines of the assessees, credit has been rightly held to be admissible. We, therefore, uphold the impugned order and reject the appeal. The cross-objection is only in the nature of reply to/comments upon the Revenue rsquo s appeal and is therefore dismissed. (Operative part of the order was pronounced in open court on 15-10-2009)
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2009 (10) TMI 697
CENVAT credit - Rule 6(3)(b) of CCR - the appellants neither maintained separate accounts in respect of the exempted finished goods nor kept the department informed about the clearance of the exempted goods - extended period of limitation - Held that: - it is well known that the department has a regular programme of audit, under which different units are audited according to the frequency laid down, for example, a bigger unit having more transactions and paying more revenue is audited more frequently, say, once in 6 months. It cannot be a case of anybody that since all the excisable units are being audited by the department from time to time, the extended period of limitation will not apply in respect of any unit. Such an interpretation would render the relevant legal provision regarding application of extended period of time totally redundant and hence cannot be accepted.
The appellants did not maintain separate accounts of receipt, consumption and inventory of inputs which were used in the manufacture of dutiable final products as well as exempted goods removed to its sister concern without payment of duty. There is also no evidence on record to support the claim of the appellants that it had submitted particulars of removal of exempted goods to the department.
Appeal dismissed - decided against appellant.
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2009 (10) TMI 696
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... ... ..... set aside and the case may be remanded for fresh examination of the matter or any other order as deemed fit may be passed rdquo . 4. emsp Once the authority below had found duty element having been transferred to the consumers and therefore had applied the principle relating to the bar of unjust enrichment and had credited the refundable amount to the Consumer Welfare Fund, one fails to understand as to how the Commissioner can be said to be aggrieved by such an order. If at all the assessee feels aggrieved by such order and files appeal, then nothing can prevent the Commissioner/Department from filing cross-objection raising whatever objections they could want to raise but till then, the present appeal is nothing short of the abuse of process of the Tribunal. In such circumstances, the appeal is dismissed with direction to the Registrar of the Tribunal to forward copies of this order to the Secretary (Revenue), Government of India as well as Chairman of the Board forthwith.
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2009 (10) TMI 695
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... ... ..... licant wants to withdraw the stay applications which have already been disposed off. The learned Advocate failed to establish any error or defect to be modified in the order passed by this Tribunal on 24-6-2009 and he has failed to establish on merit that the said order required any modification. The intention of the applicants is to avoid the compliance of the stay order. The applicants are willing to withdraw the stay applications filed by them along with the appeal in the guise of these application for modification of the order which cannot be permited at all. Accordingly, the applications for modification of the stay order dated 24-6-2009 passed by this Tribunal are dismissed. 4. The applicants are further directed to comply the order of this Tribunal dated 24-6-2009 within 8 weeks from today and report compliance on 28-12-2009. 5. Failure to comply with the above directions will result in dismissal of their appeal without any further notice to them. (Pronounced in Court)
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2009 (10) TMI 694
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... ... ..... r to be treated that the assessee has not suppressed any thing from the department regarding the so called change in constitution. rdquo 5. Even though the status of the undertaking changed, we take note of the fact that the activity continued as they were being undertaken earlier and the change was mainly in terms of status and nothing else. This cannot be considered as suppression of facts. Even if the fact is suppressed as contested by the department, the fact remains that there could not have been any intention to evade payment of duty by changing status of undertaking. 6. In view of the above, we hold that extended period of limitation is not applicable. Since we find no merit in the impugned order as regards the limitation, whole demand falls outside the period of limitation and the appeal is allowed on the ground of limitation only since show cause notice was issued in April, 2001 for differential duty arising during the period from 1996 to 1998. (Pronounced in Court)
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2009 (10) TMI 691
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... ... ..... he appellate order. In absence of provision for mandatory penalty and appellant rsquo s delay not being found attributable to any reason contrary to law or mala fide, he should be exonerated from penalty prescribed by Rule 27 which does not appear to be mandatory in view of the language employed by the said Rule. It may be stated that knowable breach is punishable if that is deliberate or wilful and resulting in defiance of law. But such circumstance does not comer out from the appellate finding. The appeal is therefore allowed setting aside the impugned order for the reason that mere technical breach shall not ipso facto call for imposition of penalty when there is no mandate in statute under Rule 27 of Central Excise Rules, 2002 that every breach should necessarily be punished. It can be said so, following ratio laid down by the Apex Court in the case of State of Madhya Pradesh v. Bharat Heavy Electricals - 1998 (99) E.L.T. 33 (S.C.). (Pronounced and dictated in open Court)
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2009 (10) TMI 690
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... ... ..... iod of limitation is available to the department as the assessee had not made any entries in statutory records regarding the quantity of fishnets and lsquo Monofilament Yarn rsquo and the shortage and non-reversal of credit would have gone undetected but for the visit of Preventive Wing of the Central Excise Department. Since the assessee was not maintaining separate accounts for receipt and consumption of inputs meant for use in the manufacture of exempted goods and they were taking credit on inputs intended for use in the manufacture of both dutiable and exempted goods, the initial burden cast upon the department has been discharged and the burden shifted to the assessees to show that they had not availed credit of duty paid on lsquo Monofilament Yarn rsquo in the manufacture of fishnets (exempted goods) which they were not in a position to do. 3. In the light of the above discussion, I uphold the impugned order and reject the appeal. (Pronounced in open court on 7-10-2009)
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