|
Advanced Search Options
Central Excise - Case Laws
Showing 41 to 60 of 189 Records
-
2009 (11) TMI 785
... ...
... ... ..... ment of Cenvat credit, without a time limit, imposition of mandatory penalty would not be justified. However, there is no doubt that there has been a violation of the Cenvat Credit Rules in view of the fact that the inputs were not received within stipulated time of 180 days and the reversal was made not suo motu but on being pointed out by the Department. I am, therefore, of the view that penalty under Rule 15(1) of the Cenvat Credit Rules, 2004 is imposable. rdquo 7. I do not find any infirmity in the impugned order and the same is upheld. The learned DR has failed to prove that there was no mala fide intention of the respondent to evade the payment of duty. There is also no specific allegations against respondent in the show-cause notice that the respondent has intentionally evaded the payment of duty. In this situation, the appeal filed by the Revenue is rejected. Cross Objection filed in support of Order-in-Appeal is also disposed of. (Pronounced in Court on 26-11-2009.)
-
2009 (11) TMI 784
Attachment of leased factory - recovery of amount from the lessee to the lessor - Held that: - Commissioner (Appeals) has held that appellants are liable in terms of the provisions of Section 142 of Customs Act and held that only lessee is deemed to be in possession of the factory premises. We find that observation of the Commissioner (Appeals) about the applicability of Section 142 is not proper - detailed legal position as to the applicability of Section 142 and also the observation of Commissioner (Appeals) that Section 11 of Central Excise Act is not applicable is required to be examined at the time of final hearing of appeal - appeal allowed by way of remand.
-
2009 (11) TMI 783
... ...
... ... ..... that substantial benefit of Cenvat credit should not be denied on the ground of procedural in-correctness. In the whole procedure which assessee has followed, the availment and utilization of Cenvat credit on corrugated boxes is by the appellant instead of by the manufacturer of pet jars which would have been the case, had proper procedure been followed. Except this, there is no effect on the duty collected by the department. 3.3 In view of the foregoing discussions, I find no merit in the case of the department and accordingly, after waiving the pre-deposit as required under Section 35(F) of the Central Excise Act, 1944, allow the appellant rsquo s appeal in full and set aside the impugned order. rdquo 5. In view of the above, we consider that credit availed by the appellants has been properly availed and accordingly impugned order is set aside and the appeals filed by the appellants are allowed with consequential relief to the appellants. (Dictated and Pronounced in Court)
-
2009 (11) TMI 782
... ...
... ... ..... ommissioner (Appeal) relied on a decision of this Tribunal to classify the goods in favour of the assessee. In a case of this kind, wherein the Revenue and the assessee consistently took rival positions with their own arguments, it can hardly be said that the assessee was conducting themselves with intent to evade payment of duty. Even in the present appeal, there is no specific ground raised in favour of any penalty on the assessee, nor is there any prayer for imposing penalty on them. The appellant has not made out any case for a penalty on the respondent under Rule 25. 6. In the result, the assessee has to pay duty on the goods in terms of the binding decision of the Hon rsquo ble Supreme Court on the classification issue, but they can avail MODVAT/CENVAT Credit of the duty paid on inputs subject to production of the relevant duty-paying documents. There shall be no penalty on them. The appeal is partly allowed. 7. Cross objections are also disposed of. (Dictated in Court)
-
2009 (11) TMI 781
... ...
... ... ..... nd. These submissions have lot of force in them. I also find that the jurisdictional Central Excise officers have warehoused the goods received by the appellants. There is no allegation of any collusion. This goes to show that there was no deliberate intention on the part of the appellants in not following the procedure prescribed under Notification 34/01. The Commissioner (Appeals) has also recorded that there has been separate proceedings against M/s. Indian Oil Corpn. demanding duty on the raw naphtha cleared without observing due procedure to the appellants. Without commenting on eligibility or otherwise at the despatching end (the matter is not before me) I hold that there is no justification for imposition of penalty on the appellant. In the facts and circumstances of the case, there is no justification for imposition of penalty. 7. In view of the above, the penalty sustained by the Commissioner (Appeals) is set aside and the appeal is allowed with consequential relief.
-
2009 (11) TMI 780
... ...
... ... ..... ies, I find that the Commissioner (Appeals) has discussed the issue in detail and allowed the appeal of the respondents. Further, I find that the respondents have not charged any extra amount on account of luxury tax from their customers and the price at which the snuff was sold was inclusive of all duties and taxes and the respondents have not paid the amount of luxury tax at the time of clearance as the respondents were contesting the levy of luxury tax but later on it was paid by the respondents out of the realized amount from the customers which was cum-duty price. Hence, I find that the respondent paid the duty on the assessable value without taking the abatement for the same and in that process they have paid more duty than what ultimately turned out to be payable under the law. Hence, I do not find any infirmity in the impugned order and the same is upheld. rsquo 10. In the above term, the appeal filed by the Revenue is rejected. (Pronounced in the Court on 19-11-2009)
-
2009 (11) TMI 777
... ...
... ... ..... ed on 1-4-02 and wrote to the Department a letter dated 18-10-02 as recorded in the order of the Commissioner (Appeals) to treat the matter as closed. Subsequently, they have paid interest of Rs. 31,548/- on 17-4-04. Original authority confirmed the demand of Rs. 98,589/- along with interest and imposed equal amount as penalty. The Commissioner (Appeals) taking the above facts into account, confirmed the amount of duty and interest but reduced the amount of penalty to Rs. 20,000/-. 3. After hearing both sides, we are of the view that the penalty sustained by the Commissioner (Appeals) on the appellant is not justified. The same is set aside. 4. The appeal is disposed of as above.
-
2009 (11) TMI 775
... ...
... ... ..... 7-5-2009 2009 (247) E.L.T. 682 (Tribunal) , wherein the Commissioner was directed to dispose of the matter prior to 31-12-2009. We are told that the Commissioner is awaiting the results of the present appeal also. This is one of the circumstances, which we considered while allowing the Revenue rsquo s EH application. 3. It appears from the learned Commissioner rsquo s order that she was acting upon the verification report submitted by the Divisional Assistant Commissioner. Her order does not disclose independent application of mind. Such an order requires to be set aside at the earliest. 4. In the result, we set aside the Commissioner rsquo s order and allow this appeal by way of remand, directing the Commissioner to take fresh decision on the three abatement applications of the assessee while dealing with the case already remanded by us under order dated 7-5-2009. Needless to state that the assessee should be given a reasonable opportunity of being heard. (Dictated in Court)
-
2009 (11) TMI 774
... ...
... ... ..... paid by manufactures. rdquo The impugned order nowhere discloses any discussion on the point as to whether the local tax paid by the manufacturer included the sales tax, local and/or central. This aspect was required to be verified by the Adjudicating Authority by taking into consideration the factual situation in relation to the payment of such taxes, if any, by the appellants for the relevant period. The authority having not done the required exercise and merely on the basis of remarks on the invoices the matter having been disposed of, the same cannot be sustained and the matter need to be remanded to the authority to deal with the same afresh in accordance with provisions of law and to arrive at or correct finding based on the fact situation in the matter. As no other point is canvassed, the matter is remanded for the above purpose with the direction that the authority shall dispose of the matter as early as possible. Appeal accordingly stands disposed of, in above terms.
-
2009 (11) TMI 772
... ...
... ... ..... s are known to both the parties, omission by one party to do what he might have done will not amount to suppression and that for invoking extended period, some thing positive other than mere inaction or failure on the part of the manufacturer - conscious or deliberate withholding of information when the manufacturer knew otherwise, is necessary. 3.1 In this case, none of the criteria for invoking extended period are satisfied. The criteria for invoking extended period under proviso to Section 11A and for imposition of penalty under Section 11AC are identical. Hence neither extended period for recovery of duty is invokable nor penalty under Section 11AC is imposable. 4. In view of above discussion, the duty demand is upheld only for the normal limitation period and the duty demand for the period beyond the normal limitation period as well as the penalty under Section 11AC is set aside. The appeal is partly allowed. (The operational portion of the order pronounced in the Court)
-
2009 (11) TMI 771
... ...
... ... ..... y imposed on the respondent is not justified. Assessee had paid duty on the differential amount as soon as the same was realized. It cannot be held that the respondent had committed any breach of provisions deliberately. Moreover the appeal has not raised any ground justifying the penalty. Penalty cannot be imposed in the absence of deliberate defiance of law even if the statute provides for penalty. As regards the extent of interest payable on amount realized, subsequent to clearance of goods, under supplementary invoices, the issue was finally settled only recently when the Apex Court decided the dispute in the case of CCE, Pune v. M/s. SKF India Ltd., reported vide 2009-TIOL-82-S.C.-CX 2009 (239) E.L.T. 385 (S.C.). In the circumstances, we partially allow the appeal filed by the Revenue and restore the order of the original authority to the extent it confirmed demand of interest. (Operative portion of the order already pronounced in open court on conclusion of the hearing)
-
2009 (11) TMI 770
... ...
... ... ..... (4) and (5) read as under - 3(4) - lsquo When the inputs or capital goods on which cenvat credit has been taken, are removed as such from the factory, the manufacturer of the final products shall pay amount equal to the credit availed in respect of such inputs or capital goods and such removal shall be made under cover of an invoice referred to in Rule 7 ... rsquo 3(5) - lsquo The amount paid under sub-rule (4) shall be eligible as Cenvat credit as if it was a duty paid by the person who removed such goods under sub-rule (4).... rsquo Since capital goods can be cleared either under Rule 3(4) or Rule 4(5), there can be no objection to taking credit of duty paid by HMIL, in terms of Rule 3(5) of the Cenvat Credit Rules. In this view of the matter, there cannot be any objection to SPIPL taking credit on supplementary invoices issued by HMIL. We, therefore, set aside the impugned order and allow the appeals. (Operative part of the order was pronounced in open court on 17-11-2009)
-
2009 (11) TMI 769
... ...
... ... ..... ees do not establish that molasses had actually been consumed in the manufacture of cattle feed. 3. In the light of the above, we hold that the Department has made out a case that no cattle feed was manufactured by the assessees during the period in dispute and that, therefore, they are required to discharge duty liability on the molasses procured by them but not utilized for the manufacture of cattle feed. Since the demand is raised under Rule 196 of the Central Excise Rules the question of time limit does not arise and the assessees have also not challenged the demand on the ground of limitation. 4. We, therefore, uphold the impugned order insofar as it relates to Sri Ganesh Industries, However, since it is a proprietary concern of which Shri G. Jeganathan is the proprietor, separate penalty upon the proprietor is not sustainable and is set aside. 5. In the result Appeal No. E/652/2003 is rejected and Appeal No. E/653/2003 is allowed. (Dictated and pronounced in open court)
-
2009 (11) TMI 768
... ...
... ... ..... bove invoices. However, I agree with the assessees that they have been able to establish a link between the goods sent by M/s. KTV Oil Mills and M/s. Adani Exports Ltd. and then to M/s. Fortune Traders, who is an unregistered dealer and to the assessees, as the vehicle number shown in M/s. KTV Oil Mill rsquo s invoice i.e., TN 04 J 7645 is the same number as shown in the invoice under which the goods were supplied by M/s. Fortune Traders to the assessees and the quantity and description of goods also tallies. In the light of the Tribunal rsquo s order in Punjab Paint, Colour and Varnish Works (P) Ltd. v. Commissioner of Central Excise, Kanpur 2007 (219) E.L.T. 451 (Tri.-Del.) the assessees have been rightly held to be eligible to credit of Rs. 58,303/-. 3. In this view of the matter, I uphold the impugned order insofar as it relates to extending credit of the above mentioned amounts to the assessees and reject the appeal of the Revenue. (Dictated and pronounced in open court)
-
2009 (11) TMI 767
Diversion of free sale sugar to levy sugar quota - demand - It is the case of the appellants that they have paid the appropriate duty as applicable to levy sugar and free sale sugar in respect of the diverted quantities - Held that: - No material has been produced on behalf of the Department to prove the contrary that appellants have either short paid the duty or they have been any way compensated by the Govt. of India and thereby they have enriched themselves at the cost of the Govt. revenue. Hence, we are of the view that the impugned order passed by the lower appellate authority reversing the order of the original authority is not sustainable - appeal allowed - decided in favor of appellant.
-
2009 (11) TMI 766
... ...
... ... ..... dered the submissions made by the learned Advocate. Since duty and interest have already been deposited and the issue is basically one that relates to a dispute of valuation, we consider the amounts deposited by the appellants sufficient for the purpose of Section 35F of Central Excise Act, 1944 and therefore we allow the stay petition unconditionally during the pendency of appeal. We also quash the order of detention issued by the Assistant Commissioner under Section 11 of Central Excise Act, 1944 in view of the fact that we have allowed the stay petition unconditionally. At this stage learned Advocate requests that the order may be issued by dasti the clearances have been held up because of the detention order. The request is accepted and registry is directed to issue the order by dasti immediately. The appellant shall serve the copy of this order to the concerned Assistant Commissioner so that detention order can be withdrawn immediately. (Dictated and Pronounced in Court)
-
2009 (11) TMI 764
Valuation of bullet proof vehicles supplied to Jammu & Kashmir Police by the respondent - job-work - transaction value - Held that: - goods have to be assessed at the place of removal and if the value cannot be determined under main provisions of Section 4(1)(a) of the Act, rules for valuation have to be resorted - the goods should be assessed in the condition in which the same are cleared from the factory and the value addition on account of the processing carried out by the job worker subsequent to the clearance of the goods should not be taken into account - appeal dismissed - decided against appellant.
-
2009 (11) TMI 763
Interest on delayed refund - Held that: - there is no authorization by the Commission (sic) of Commissioner for filing appeal to Tribunal against the Commissioner (Appeals)’s order and there is no explanation in this regard from the learned DR. Therefore, on this very ground this appeal is liable to be dismissed.
Just because while payment of refund, in addition to confirmed duty demands, some penalty and interest were also adjusted which were subsequently set aside, the amount adjusted towards penalty and interest would not become penalty and interest and on setting aside of the order of penalty and interest, the interest on the refund, which was payable to the respondent cannot be denied.
Appeal dismissed - decided against Revenue.
-
2009 (11) TMI 762
... ...
... ... ..... ) of Central Excise Rules, 1944, no mens-rea is required to be proved. However, looking to the circumstances, I am of the view that penalty of Rs. 20,000/- would meet the ends of justice. 4.2 As regards the Cenvat credit in respect of the duty paid on the rough forgings received from M/s. PTL, the same would be available since the finished products - tractor parts are not exempt. However, Cenvat credit would be restricted only to the actual quantity received from M/s. PTL and also only if PTL had not taken Cenvat credit. For this purpose, this matter has to be remanded to the Assistant Commissioner for ascertaining as to whether M/s. PTL had taken any Cenvat credit or not in respect of rough forgings sent to the job worker and also how much quantity had been sent. The matter is remanded to the Assistant Commissioner for quantification of Cenvat credit available to the respondent. The Revenue rsquo s appeal stands disposed off, as above. (Dictated and pronounced in open court)
-
2009 (11) TMI 761
Refund claim - rejection on the ground that the appellants obtained approval as SEZ unit only on 27-10-2006 and they were eligible for procuring duty free goods thereafter - Held that: - even if the refund is not strictly admissible on the ground that procedure was not followed, it is required to examine whether appellants were eligible in the normal course for the refund if the goods have been exported, The refund claim has been blindly rejected only after examining with respect to SEZ Act and procedure prescribed by the Government - appeal allowed - decided in favor of appellant.
........
|
