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Central Excise - Case Laws
Showing 21 to 40 of 189 Records
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2009 (11) TMI 809
Refund claim - unjust enrichment - Held that: - the appellant has able to establish that the duty incidence has not been passed on the customers and the claim is not hit by the bar of unjust enrichment and the same is not controverted by the department - the appellant are entitled for the refund claim as the appellant has been able to establish by producing the documents, namely Balance Sheet, Profit and Loss Account, Chartered Accountant Certificate and Affidavit - appeal allowed - decided in favor of appellant.
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2009 (11) TMI 808
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... ... ..... rnova Plastyles Pvt. Ltd. v. CCE, Raigad - 2008 (232) E.L.T. 29 (Tri.-LB), is prima facie settled the issue against the assessees. However, in the light of the fact that the clearance of the capital goods took place ten years from the date of initial installation in the factory and depreciation is allowed annually on the capital goods, and therefore the duty liability would get either completely reduced or wiped out entirely, I hold that no case for directing predeposit has been made out. I, therefore, waive predeposit of duty together with interest and stay recovery thereof during the pendency of the appeal. (Order pronounced and dictated in the open Court)
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2009 (11) TMI 807
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... ... ..... s has not considered this fact and the applicant has not challenged the impugned order on this ground. Moreover, he further submitted that in the case of BDH Industries Ltd. v. Commissioner of C.Ex. (Appeals), Mumbai-I - 2008 (229) E.L.T. 364 (Tri.-LB). It was held that all types of refund have to be filed under Section 11B of the Central Excise Act, 1944 and no suo motu refund can be taken unless and until the department is satisfied that the incidence of duty has been passed on and this Tribunal has rightly held in para 5 of the order dated 28-7-2009 this aspect. 4. Heard. 5. On careful consideration of the submissions made by both the parties I find that the applicant has not challenged the order on the ground which is stated in its application for rectification of mistake and same cannot be considered now. The applicant has not able to establish any mistake on merits of the order. Accordingly, the application for rectification of mistake is rejected. (Pronounced in Court)
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2009 (11) TMI 806
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... ... ..... amount as penalty treating the case as involving suppression, misstatement etc. under proviso to Rule 25 does not arise. However, the delay in payment beyond one month clearly attracts the provision of Rule 8(3) as submitted by the learned DR. The clearances are to be treated as non-duty paid. The implication of the provisions that consequences follow are that the said goods, if they were available, were also liable for seizure/confiscation. It is not the case that the goods have been seized or subject to confiscation. Nonetheless, there is deemed non-duty paid clearances and therefore, some penalty is warranted. 6. In view of the above, I set aside the order of the Commissioner (Appeals) and restore the order of the original authority. While restoring the order of the original authority, penalty of Rs. 5,46,448/- imposed under Rule 25 is converted into penalty of Rs. 5000/- only under Rule 27 of the Central Excise Rules, 2002. 7. The appeal is disposed of on the above terms.
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2009 (11) TMI 805
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... ... ..... ase, set aside the penalty and cautioned the assessee to be careful in future. The Committee of Commissioners have felt that some penalty should necessarily be imposed and therefore, directed appeal against the Commissioner (Appeals) rsquo s order. The respondents have filed a cross-objection basically in support of the order of the Commissioner (Appeals). 3. After hearing the learned SDR, it is observed that the appeal should not have been filed considering the nature of issue involved and considering that the Commissioner (Appeals) has set aside the penalty of Rs. 1000/- taking into account the submissions made before him. 4. With the above observations, the appeal is rejected. Cross-Objection is also disposed of.
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2009 (11) TMI 804
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... ... ..... regards the setting aside of penalty on MD of respondent company, I find that the respondent company only has filed cross objection even though the cross objection might be signed by the Shri J.D. Gupta in the capacity of MD of the respondent company. The cross objection is thus only by the respondent company. I do not find any appeal or cross objection filed by Shri J.D. Gupta in his own capacity even though the Commissioner (Appeals) has sustained penalty to the extent of Rs. 72,000/- on him. Therefore, the prayer of the learned Advocate for setting aside the penalty is outside the scope of cross objection and therefore, the same is not acceded to. 8. The appeal and cross objections are disposed of as follows - (a) nbsp nbsp the confiscation of Indian currency and consequent redemption fine of Rs. 72,000/- imposed is set aside (b) nbsp nbsp the order relating to penalty imposed on Shri J.D. Gupta is not interfered with (c) nbsp nbsp the appeal of the department is rejected.
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2009 (11) TMI 803
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... ... ..... nformity of claim of respondents at the time of visit of the officers that the goods were sent to Unit No. 2 for the purpose of painting, packing and loading for export purpose. Under these circumstances, the leniency showed by the Commissioner (Appeals) for reducing the redemption fine and reducing the penalty under Rule 25 are fully justified. No evidence has been produced to contradict the finding of the Commissioner (Appeals) that there was no intention to evade payment of duty. Infact, no duty stands demanded. As already mentioned unit No. 2 is not a separate legal entity and in the facts and circumstances of the case, no penalty was warranted on the second unit. In view of the above, the order of the Commissioner (Appeals) in setting aside the penalty on unit 2 cannot be found fault with. 6. In view of above, I hold that no valid grounds have been adduced to interfere with the order of the Commissioner (Appeals). 7. The appeal of the department is, therefore, rejected.
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2009 (11) TMI 802
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... ... ..... at credit for payment of duty in respect of goods cleared for domestic tariff area. The circular dated 23-9-04 and the notification dated 6-9-04 both relate to utilization of the credit. The credit can be utilized or refund against the credit can be allowed only if the assessee is first of all eligible for taking the credit. In the present case, the lower appellate authority has correctly taken judicial notice of the fact that the HSD oil is not covered as inputs under the Cenvat Credit Rules. In the circumstances, the appellants are not eligible for taking the credit of the duty paid on the same. Consequently, when they are not eligible for taking the credit, the question of utilizing the same or refund of the same in the event of not being able to utilize cannot arise. Therefore, I am of the view that the lower appellate authority has passed a legal and proper order and the same requires no interference. The appeal is dismissed. (Order dictated and pronounced in open Court)
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2009 (11) TMI 801
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... ... ..... 66 lakhs as well as penal action was issued the Additional Commissioner dropped the proceedings for denial of exemption and the demand of differential duty but imposed a penalty of Rs. one lakh on the assessees under the provisions of Rule, 173Q and 226 of the Central Excise Rules, 1944. The Commissioner (Appeals) upheld the imposition of penalty, hence this appeal. 2. We have heard both sides. We find that the adjudicating authority has accepted that the assessee rsquo s submission that the notification stops utilization of Modvat credit only under Rule 57A and not under Rule 57Q, as valid. He has also held that the assessee had no intention to evade payment of duty or loss to the exchequer and hence the demand has been dropped by the adjudicating authority. The cumulative effect of the above is that there should have been no liability of the assessees to any penalty. We, therefore, set aside the penalty and allow the appeal. (Order dictated and pronounced in the open Court)
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2009 (11) TMI 798
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... ... ..... plicants on the date when the matter was dismissed for default, the application is liable to be dismissed. 12. Though there is a statement to the effect that ldquo the copy of the order of the Tribunal had been procured from the Department and the same was never received by us from the Tribunal rdquo , neither the verification clause nor the affidavit in support of this statement discloses any source of information in that regard. As already observed above, the General Manager of the applicants, namely, Shri Mohan Gupta, has not disclosed the source of information in that regard nor it has been stated that the records of the applicants were verified and it was ascertained as to whether such copy was received or not. Such a vague statement cannot be of any assistance to the applicants to gain the sympathy of the Tribunal for the purpose of securing an order of restoration of the appeal. 13. For the reasons stated above, therefore, the application fails and is hereby dismissed.
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2009 (11) TMI 797
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... ... ..... roduced before the authority statutory records evidencing payment of duty, VAT, etc., on these capital goods at the time of removal. The Commissioner held that during visit of audit officers in April 2007, the impugned capital goods were not available in the factory. According to the assessee, these goods had been cleared in December 2007 and January 2008 as reflected in the invoices. This vital fact, we observe, is verifiable. We find that this aspect needs to be examined afresh. The appellant shall be afforded an opportunity to produce the statutory records and also would be shown the internal audit report following the visit of officers in April 2007. In the circumstances, we vacate the impugned order and remand the case for fresh adjudication by the Commissioner. Needless to say that the assessee shall be afforded an effective opportunity to present their case during de novo proceedings. The stay application and appeal are disposed. (Pronounced in the court on 30-11-2009)
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2009 (11) TMI 796
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... ... ..... aside the order of the Original Authority, which was in favour of the assessees, in the normal course can only revive the show cause notices. As pleaded by the ld. Advocate, if there was any wrong payment of duty on the part of the manufacturers of bright bars, the Department should have taken action at their end. The Officer In-charge of the Units receiving the duty paid inputs are not entitled to question whether the inputs are excisable or whether the classification adopted by the despatching units are correct. Granting such authority to the officers in-charge of the recipient units shall lead to chaos. Under circumstances, the order of the Commissioner (Appeals) questioning the excisability of the product received as inputs by the appellants cannot be sustained. 7. The orders of the Commissioner (Appeals) are set aside and the orders of the Original Authority, which are in favour of the appellants are restored. (Order dictated and pronounced in open court on 13-11-2009).
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2009 (11) TMI 795
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... ... ..... ments of deponents. Being so, considering the law laid down by the decision which are sought to be relied upon by the learned Advocate for the appellants we find that prima facie case has been made out in relation to the duty liability to the tune of Rs. 64 lakhs (Rupees sixty four lakhs). 7. In the facts and circumstances of the case where it apparently disclose failure on the part of the authorities to give opportunity to cross examine the most relevant witness, we do not find justification for insisting the deposit of duty, interest and penalty at this stage except the amount of Rs. 22 lakhs along with interest thereon. In the facts and circumstances of the case and for the reasons stated above, we direct the appellants to deposit Rs. 22 lakhs along with interest thereon within a period of 8 weeks and on deposit thereof demand of balance amount under the impugned order shall stand waived till the disposal of the appeals. Compliance report to be filed on 25th January, 2010.
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2009 (11) TMI 794
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... ... ..... nterpreted to mean a bar on opting for Notification 38/97-C.E in view of the clear provisions in the notifications. In other words, the restriction on a manufacturer paying full duty is that he cannot opt for the concessional duty of nil, 3 and 5 but he can choose to opt for benefit under Notification No. 38/97-C.E. rdquo 8. The submission of the ld. DR that a notification has to be construed strictly cannot be assailed. The show-cause notices issued to the Appellants were not proposing denial of the Notification 38/97 or any alleged failure of the conditions. Thus, whether the conditions of 38/97 fulfilled or not was not the issue raised in the show-cause notices. Since the ground on which credit under Modvat Scheme was sought to be denied do not survive, the orders of the lower Authorities cannot be sustained. 9. Therefore, the orders of lower Authorities are set aside and the Appeals are allowed with consequential relief as per law. (Dictated and pronounced in open Court)
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2009 (11) TMI 793
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... ... ..... for similar circumstances, the minimum penalty prescribed is only Rs.2000/-. 5. Learned SDR reiterates the finding of the Commissioner (Appeals). 6. I have carefully considered the submissions from both sides. It is definitely a mistake in taking credit of education cess on basic customs duty which is not in dispute. Admittedly, the entire amount of credit along with interest stands paid. The show cause notice does not make any allegation of deliberate intention on the part of the appellant to avail the ineligible credit. The explanation offered by the learned Advocate that at the initial stage of imposition of education cess, the appellant had under mistaken impression taken credit wrongly deserves to be accepted. Therefore, there is justification for further reduction of penalty sustained by the Commissioner (Appeals). 7. Taking the entire facts of the case into account, I reduce the penalty to Rs. 10,000/- (rupees ten thousand) only. 8. Appeals is partly allowed as above.
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2009 (11) TMI 792
Reversal of CENVAT credit - Rule 6(2) of the CCR, 2002 - non-maintenance of separate books of accounts - Held that: - Ld. Commissioner has categorically observed that there was no evidence to show conspicuously as to the inputs used for aforesaid two purposes distinctly. Ld. Commissioner came to conclusion that there was no evidence for demarcation. This is suffice on our part to hold that the appellant is not eligible to CENVAT credit in respect of inputs used for generation of electricity sold to outsiders - the appellant not having maintained the records separately to show the quantum of inputs used for generation of electricity, for its captive consumption and sale to outsiders, the appellant has rightly been called upon to pay 8% of the value of the electricity supplied to outside.
The matter calls for remitting back the same to the ld. Adjudicating Authority to work-out the quantum of demand attributable to the direction aforesaid in respect of the normal period - demand is confirmed to normal period of limitation - penalty is set aside - appeal allowed by way of remand.
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2009 (11) TMI 791
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... ... ..... ant has filed the necessary returns. It is not a case of clandestine removal. There is no intention on the part of the appellant to evade the duty. It is the case of delay in payment due to unavoidable circumstances as claimed by the party. Inasmuch as the duty was not paid by the due date, the clearances are deemed to be non-duty paid clearances and hence violation of Rule 8(3A) of Central Excise Rules is established and some penalty is warranted. 4. In the facts and circumstances of the case, I hold that penalty under Section 11AC is not warranted and the same is modified as penalty of Rs. 5,000/- under Rule 27. 5. The appeal is disposed of in the above terms. Stay petition is also disposed of.
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2009 (11) TMI 790
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... ... ..... mpounded Levy Scheme came into force in respect of the products manufactured by the Appellant. In such a case, to fasten duty liability for a period when the Appellant was not engaged in production after due intimation to the Department is not warranted. If a new unit were to come into existence from 12-10-97, admittedly, the assessee was required to pay duty only from 12-10-97. As a unit which was functioning prior to 1-9-97 the production capacity may be determined by the method prescribed. However, I do not find any justification whatsoever to fasten liability for the period from 1-9-97 to 11-10-97. Even if it is held that the Appellant came under the scheme from 1-9-97, it is a clear case, where the benefit of abatement provided under proviso to Section 3A(3) is to be extended as the unit was not manufacturing after due intimation to the Department. 8. In view of the above, the Appeal is allowed with consequential relief as per law. (Dictated and pronounced in open Court)
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2009 (11) TMI 789
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... ... ..... alid duty paying document during the period in dispute. The period in dispute is December, 2001 to April, 2002 whereby as per the CENVAT Credit Rules, 2001 the CENVAT Credit can be availed on the basis of invoice issued by the manufacturer. As during the period in dispute the invoice is valid duty paying document therefore Appellants are entitled for the credit. Reliance of Revenue on the decision in the case of Vandana Energy and Steel Pvt. Ltd. (supra) will not help the case as in that case the credit was availed on the basis of office copy of extra copy of invoice whereas in the present case invoice was issued by the manufacturer. In absence of any Rule which prohibits the Appellant for taking credit on the basis of invoice issued by the manufacturer during the period in dispute I find the impugned order is not sustainable hence set aside. Appeal is allowed. Appellants are entitled for consequential relief in accordance with law. (Pronounced and dictated in the open court)
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2009 (11) TMI 787
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... ... ..... arty. 3.2 Commissioner thereafter by order dated 12-4-07 reviewed the order of the original authority dated 16-11-2006 and directed filing of appeal on a short point that the penalty imposed should have been a minimum of Rs. 10,000/- as against Rs. 3,000/- imposed by the original authority. The appeal filed in pursuance of the review order stands dismissed by the Commissioner (Appeals) vide impugned order dated 29-8-07. 4. As the order of the original authority dated 16-11-2006 stands set aside vide order dated 26-3-07 by the Commissioner the order in review dated 12-4-07, in effect, reviewed a non-existing order. On the basis of that review order, the Department has filed the present appeal seeking enhancement of penalty from Rs. 3,000/- to a maximum of Rs. 10,000/- whereas by that time, the order imposing penalty of Rs. 3,000/- itself is not in force. 5. In view of the above, the appeal by the Department is rejected as not maintainable. Cross-Objection is also disposed off.
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