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Central Excise - Case Laws
Showing 61 to 80 of 189 Records
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2009 (11) TMI 760
Valuation - includibility - inclusion of cost of advertisement to the extent of 50% paid by the dealer to the respondent - Circular No. 643/34/2002-C.X. dated 1-7-2002 - Held that:- In the case of Philips India Ltd. v. CCE [1997 (2) TMI 120 - SUPREME COURT OF INDIA], learned Appellate Authority came to the conclusion that 50% cost of the advertisement received by the Respondent was not includible in the assessable value - appeal dismissed - decided against Revenue.
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2009 (11) TMI 759
... ... ... ... ..... t, the duty could be recovered without limitation. The appellant has submitted that there was no provisional assessment in this case. The Department also has not brought on record any evidence of provisional assessment in this case. Apparently, the adjudicating authority proceeded on an erroneous basis. Further, we find that, while the show-cause notice clearly alleged suppression of facts and contravention of law by the assessee with intent to evade payment of duty, the ld. Commissioner proceeded on a different basis to hold that the demand of duty for the aforesaid period was not hit by limitation. Again, in this case also, the assessment for the aforesaid period would be governed by CAS-4 formula. For all these reasons, we set aside the Commissioner rsquo s order and allow the assessee rsquo s appeal by way of remand. Ld. Commissioner is requested to take fresh decision on all the issues after giving the assessee a reasonable opportunity of being heard. (Dictated in Court)
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2009 (11) TMI 757
... ... ... ... ..... r a registered dealer, as the case may be, shall be liable to a penalty not exceeding the duty on the excisable goods in respect of which any contravention of the nature referred to in clause (a) or clause (b) or clause (c) or clause (d) has been committed, or rupees two thousand , whichever is greater. rdquo Perusal of the impugned order reveals that the adjudicating authority nowhere discloses any reason which would reveal ingredient of any of the clauses of Rule 25(1) so as to justify the imposition of penalty in the matter in hand. The facts on record also do not disclose any intention to evade the payment of duty nor any of the ingredients of Section 11AC. Being so the penalty is liable to be set aside. 8. For the reasons stated above, the appeal partly succeeds. The appeal, so far as it relates to merits of the case, the same is dismissed for the reasons mentioned above. The appeal, so far as it relates to penalty, it succeeds. Appeal stands disposed off in above terms.
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2009 (11) TMI 756
... ... ... ... ..... . UOI and Ors - 1987 (32) E.L.T. 666 (All.) in support of his contention that liability in respect of Central Excise duty for the legal heir is limited to the movable and immovable assets inherited by the appellant and not from the personal assets of the appellant. We need not go into the correctness of the view taken, in view of the fact that issue of liability to pay duty was not before us. The only issue before us was correctness of confirmation of duty demand and penalty imposed etc. After considering the submissions, we find that observation in this sentence has gone beyond the issue before us. Therefore, we find that this sentence requires to be modified. Accordingly, in place of this sentence in Para 18 of the order, the following shall be substituted, -- ldquo In view of the observation above, duty demanded from Shri K.K. Agarwal (KKA) in the impugned order is upheld rdquo . But for the above modification, ROM application is otherwise rejected. (Dictated in the Court)
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2009 (11) TMI 755
... ... ... ... ..... uto-rickshaw, motorcycle, etc. which were found to be unfit for transportation of scrap. In this connection, learned counsel has pointed out that the credit taken on the strength of such invoice was paid by the appellant, amounting to Rs. 2, 27, 591/- a fact noted in the Commissioner rsquo s order. Learned Commissioner also found that the appellant took inadmissible credit on parallel invoices during the period of dispute. These invoices were bearing the same serial numbers as those of the statutory invoices mentioned in RG 23D but the duty debit particulars were different. Counsel points out that the credit attributable to such invoices was also paid albeit under protest. By and large, learned counsel has been able to make out prima facie case against the Commissioner rsquo s finding on merits. 5. Accordingly, there will be waiver of pre-deposit and stay of recovery in respect of the duty and penalties including the penalty on the director of the company. (Dictated in Court)
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2009 (11) TMI 754
... ... ... ... ..... been passed on to the customers as a part of the price of the finished goods. He also cites the decision of the Hon rsquo ble Supreme Court in the case of Union of India v. Solar Pesticides Pvt. Ltd 2000 (116) E.L.T. 401 (S.C.) . 4. After hearing both sides, I find that the burden of proof that the disputed duty amount has not been passed on to the customers as a part of the price of the finished goods has not been discharged by the appellants. The certificate produced from Chartered Accountant, apart from the fact that it was not before the lower authorities, does not categorically state that the duty amount shown as expenditure under the administrative over heads was not included in the costing of the finished goods. As such, I am of the view that the appellants have not made out a case in their favour. Therefore, there is no ground for interference with the orders passed by the authorities below. Both the appeals are dismissed. (Order dictated and pronounced in open Court)
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2009 (11) TMI 753
... ... ... ... ..... vidence before learned adjudicating authority to satisfy him on pleadings made by the appellant in its reply to show cause notice dated 26-8-2004. Since we are remanding the matter for thorough examination of the materials to satisfy on aforesaid aspects and admissibility of notificational benefit, it is left to the ld. Adjudicating Authority to consider applicability of the judgements cited by the ld. SDR as above in the course of fresh hearing of the matter. 6. With aforesaid observations, we remand the matter to the ld. Adjudicating Authority to decide the matter afresh after granting proper opportunity of hearing to both sides. While remanding the matter, since we have not expressed any opinion on merits of the case, the matter is to be decided in accordance with law. 7. In the light of our observations as above, both the matters are remanded to the learned Adjudicating Authority to the extent as indicated above. (Order dictated and pronounced in open court on 25-11-2009)
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2009 (11) TMI 751
... ... ... ... ..... e, we are of the considered opinion that at this stage, it cannot be said that appellants have not made out a case for stay of the impugned order to the extent an amount of Rs. 1,96,82,823/- and also in relation to the amount of interest and the penalty. However, we do not find any case having been made out for stay of the balance amount of duty demanded under the impugned order. It cannot be disputed that the excess clearance in the matter based on misdeclaration is nothing short of clandestine removal of the goods. Being so, the appellants are required to deposit sum of Rs. 1,08,65,865/- after giving due credit of an amount of Rs. 74,00,000/-, which has already been deposited by the appellants. As regards the balance amount of the duty as well as interest and penalty the same shall stand waived till the disposal of the appeal. The appellants shall deposit the balance amount of duty, as above, within a period of twelve weeks and file the compliance report on 8th March, 2010.
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2009 (11) TMI 750
... ... ... ... ..... relating to the period from October, 1999 to June, 2000 were also set aside by Commissioner (Appeals) and on an appeal filed by the Department, the appeal was rejected vide Order No. A/2309/WZB/AHD/2008 2009 (238) E.L.T. 133 (Tribunal) . Thus, the duty demand pertaining to the period from April, 1994 to February, 1996 and October, 1999 to June, 2000 have been set aside and it has been held that the cost of secondary packing is not includible. For the period in which duty was paid under protest, the refund claim has been filed by the appellant and in view of the fact as discussed above, the matter has attained finality for the two periods prior to and subsequent to period for which the refund has been claimed. The Department cannot open up the issue of includability of cost of secondary packing for this period, while considering the refund claim. 6. In view of the above, we find no merit in the appeal filed by the Revenue and accordingly reject the same. (Pronounced in Court)
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2009 (11) TMI 749
... ... ... ... ..... , it has been a clear case of the appellants that no such recovery has been made and there have been no such allegation even to the extent in the show cause notice. Perusal of the impugned order, prima facie, discloses no discussion on this aspect and merely because the amount has been incurred as freight paid to railways, the authority has proceeded to confirm the demand and imposed penalty. 2. The learned DR has drawn to the decision of the Apex Court in the matter of Escorts JCB Ltd. v. CCE, Delhi - III reported in 2002 (146) E.L.T. 31 (S.C.). Undisputedly, the decision has no relation to the aspect on the scope of expression of transaction value as amended w.e.f. 1st July, 2000. Being so, the same has not been attracted in the matter in hand. Prima facie, therefore, the case has been made out for grant of stay of the impugned order. The application is therefore allowed. The impugned order is stayed. The requirement of pre-deposit is waived. Application stand disposed off.
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2009 (11) TMI 748
... ... ... ... ..... arned Departmental Representative is on the issue as to whether the cess on jute levied under Industries (Development and Regulation) Act, 1951, by the Ministry of Industry, is a duty of excise and not on the issue as to whether Education Cess under Section 93 of the Finance Act, 2004 is to be charged on the cess, though collected by the Ministry of Finance as duty of excise, but levied by the Ministry of Industry and hence the same is not applicable to the facts of this case. 5. All the above findings are prima facie findings, for the purpose of decision on the adjudication for stay. 6. In view of the above discussion, there is a prima facie case in favour of the appellant. The requirement of pre-deposit of duty demand, and interest confirmed against the appellant and penalty imposed on them is, therefore, waived for hearing of this appeal and recovery thereof is stayed till the disposal of the appeal. The stay application is allowed. (Pronounced in open court on 13-11-2009)
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2009 (11) TMI 747
... ... ... ... ..... assessing the goods to duty of excise. They had been paying duty on assessable value determined by the cost construction method in terms of the Board rsquo s circulars then in force. They had been filing the requisite declarations under Rule 173C of the Central Excise Rules, 1944. Nothing was suppressed by them. As soon as it was pointed out to them that there was short-payment of duty for a short period, they paid up the duty. This payment was made within the normal period of limitation. In this scenario, it is argued, any penalty under Section 11AC could not have been imposed on them. We have heard the learned SDR also on this issue. After considering the submissions, we have found a valid point in the submissions made by the counsel. Accordingly, we hold that no penalty under Section 11AC is sustainable on the assessee. 3. In the result, while sustaining the demand of duty with interest thereon, we set aside the penalty. The appeal is partly allowed. (Pronounced in Court)
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2009 (11) TMI 746
... ... ... ... ..... ofar as the normal period of limitation is concerned, the assessee by short-paying duty on their products invited the penal provisions of Rule 173Q. Under these provisions, a penalty can be imposed in appropriate case up to the amount of duty. However, the amount of duty for the normal period remains to be quantified and, therefore, the amount of penalty to be imposed on the assessee under Rule 173Q is also determinable at that stage. Accordingly, after holding the assessee liable to pay duty (with interest in accordance with law) for the normal period of limitation, we direct the original authority to quantify the duty as also to determine the amount of penalty, which could be imposed on them, in the facts and circumstances of this case. The adjudicating authority shall pass a speaking order on the penalty-related issue in a just and fair manner, after giving the assessee a reasonable opportunity of being heard. The appeals are disposed of in above terms. (Dictated in Court)
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2009 (11) TMI 740
... ... ... ... ..... same has allowed credit on paints and primer. 6. emsp After carefully considering the submissions from both sides I hold that the decision of Commissioner (Appeals) in the appeal by the party related to eligibility of credit on white lead and red lead. The issue in the Department rsquo s appeal before Commissioner (Appeals) was the eligibility of Cenvat credit on paints and primer which is a different issue. Therefore, the doctrine of merger will not apply. Therefore, the order of the Commissioner (Appeals) dated 27-8-2007 cannot be sustained. However, the submission of the learned Advocate that the Commissioner (Appeals) has not gone into the merits of the case needs to be taken into account. Accordingly, I set aside the order of the Commissioner (Appeals) and remand the matter to Commissioner (Appeals) to consider the issue afresh in the appeal filed by the Department after granting reasonable opportunity of hearing to both sides. 7. emsp Appeal is allowed by way of remand.
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2009 (11) TMI 739
... ... ... ... ..... d even after amendment to Section 35A(3) of the Central Excise Rules, 1944 has been decided by the judgment of the Hon rsquo ble Gujarat High Court in the case of Commissioner of Central Excise, Ahmedabad v. Medico Labs 2004 (173) E.L.T. 117 (Guj.) holding that Commissioner (Appeals) continues to have power of remand even after the amendment to the above mentioned provision in the statute. Following the ratio of the above judgment, we uphold the impugned orders of remand and dismiss the appeals. (Dictated and pronounced in open court)
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2009 (11) TMI 737
... ... ... ... ..... any manufacturer (which may run to 100, 1000 and sometimes in lakhs) will be entitled to protest the assessment by challenging the rate of duty or valuation adopted by manufacturer from whom they are buying the goods. They are entitled to claim the refund within the time limit prescribed under Section 11B provided the manufacturer is entitled to the refund. In respect of claim of refund by a buyer of any excisable goods, the time limit prescribed is six months from the date of purchase of goods. It is not the case of the appellants that they have filed the refund claim within six months. It is not even the case of the appellants that they have filed the refund claim within six months from the order of the Tribunal which was dated 22-1-1999. 9. In view of the above, we do not find any reason to interfere with the order of the Commissioner (Appeals) holding the refund claim as time-barred. 10. The appeal is therefore, rejected. (Order dictated and pronounced in the open Court)
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2009 (11) TMI 736
... ... ... ... ..... wing realization of proceeds of clandestine clearances but this apparently important evidence is casually mentioned without giving any details. 6. emsp Charge of clandestine clearance is a serious offence. It is settled law that the finding of clandestine clearance has to be supported by positive evidence such as consumption of raw materials, electricity, evidence of sales and realization of proceeds etc. There is no such evidence whatsoever figuring in the impugned order. Disputed statements of witnesses cannot be relied on in adjudication unless they were allowed to be tested in cross examination sought by the assessee, or otherwise corroborated. The impugned order does not even give sufficient details of such statements relied upon. In the circumstances, we are constrained to remand the matter for a decision afresh by the Commissioner after complying with the principles of natural justice. The appeal is thus allowed by way of remand. (Pronounced in open court on 6-11-2009)
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2009 (11) TMI 735
... ... ... ... ..... uch an approach is not appropriate. The Commissioner (Appeals) also has adopted similar approach while allowing the appeals of the parties. 5. emsp However, the learned SDR seeks for opportunity to consider the issues afresh. Considering the nature of issues involved, and the wider implications we deem it appropriate to accede to the request. 6. emsp To enable the same, we set aside the orders of the Commissioner (Appeals) as well as the orders of the original authority and remand the matter for fresh consideration by original authority in the light of the observations made above and after granting reasonable opportunity of hearing to both sides in accordance with law. Respondents are permitted to file the detailed submissions within 45 days from the date of receipt of this order in support of their claim. 7. emsp We clarify that we have not expressed any opinions on merits of the case. All issues are kept open. 8. emsp Appeals are allowed by way of remand on the above terms.
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2009 (11) TMI 734
... ... ... ... ..... n. Even though there was an allegation in the show cause notice that the price charged to S.K. Pharmaceuticals in respect of a few products was much less when compared to the price charged to other distributors, this issue has not been discussed or considered by both the lower authorities. Since the demand has been confirmed only on the ground that S.K. Pharmaceuticals is a related person and Rule 9 in this case is not attracted, we find that the appellants have made a very strong case in their favour. In fact the case made by the appellant is so strong that we consider that it would be appropriate to waive the requirement of pre-deposit, allow the stay petitions and allow the appeals themselves straightway in view of the clear finding that the conclusions reached by the lower authorities are not correct. In view of the above discussion, impugned order is set aside and both the appeals are allowed with consequential relief to the appellants. (Dictated and Pronounced in Court)
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2009 (11) TMI 733
Whether the respondent is required to pay 10% of the transaction value in terms of Rule 6 of the CCR, 2004 on the by-product Spent Acid cleared by them without payment of duty by availing benefit of exemption N/N. 6/02-C.E., dated 1-3-2002?
Held that: - There is no dispute that the Spent Acid is a by-product arising in course of manufacture of detergent products. Further, this issue was considered by the Hon’ble High Court of Bombay in the case of Rallis India Ltd. v. Union of India [2008 (12) TMI 46 - HIGH COURT BOMBAY], where it was held that in case of common inputs used in dutiable and exempted goods, liability to pay 8/10% not arise for waste - appeal dismissed - decided against Revenue.
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