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Central Excise - Case Laws
Showing 81 to 100 of 189 Records
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2009 (11) TMI 731
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... ... ..... be sustained. rdquo 14. We find that the instant case is, one where evasion of duty by the assessee has been found on the basis of retracted statements. In the circumstances, in the absence of positive evidence of receipt of unaccounted cash towards part of the value of the excisable goods, we are not in a position to sustain the finding of undervaluation. Therefore we set aside the demand of differential duty to the tune of Rs. 77,41,944/-. Other liabilities ordered in relation to the finding of evasion by undervaluation by Hi-Tech are also set aside. Impugned order is otherwise sustained. As regards the penalty imposed on the appellants S/Shri D. Ram Babu and D. Sumanth Kuamr, we find that these have to be adjudged afresh in view of our above discussion and findings on the impugned order. The appellants will be at liberty to produce all evidence in support of their challenge to the penalties. Appeals are thus allowed by way of remand. (Pronounced in the court on 25-11-2009)
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2009 (11) TMI 730
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... ... ..... e aspects do not appear to have been taken into consideration while applying the formula for finding a total production and calculating the duty liability. Prima facie, therefore, the case has been made out for grant of stay of the impugned order and demand thereunder. 3. It is pertinent to note that the statement of Shri Ramesh Kumar Agarwal, Director of the assessee rsquo s unit specifically refers to the yield of zinc oxide out of the zinc ingots of 99.95 of purity. That being so, unless the proper investigation was made to ascertain the total production after separating the impurities from the raw materials, prima facie, in our opinion, it would not be appropriate to insist for deposit of the amount of duty demanded under the impugned order and in that view of the matter, prima facie case has been made out by the appellants. Hence, the application is allowed. The duty demanded along with the interest and penalty in the impugned order is waived till disposal of the appeal.
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2009 (11) TMI 729
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... ... ..... of Golden Dew Tea Factory and Ors. v. CCE, Coimbatore - 2007 (219) E.L.T. 362 2009 (15) S.T.R. 358 (Tribunal). Therefore, the assessee rsquo s argument that since they had filed classification list in which they claimed the benefit of the notification, the benefit cannot be denied cannot be accepted as sufficient for the purpose of extending the benefit of the Notification. However, we find force in the assessees submission that in the facts of the case no penalty is warranted - they had filed declaration for the previous financial year and were under the impression that such declaration was sufficient even for the following financial year and they had also filed classification list and clearly had stated that they intended to avail the benefit of Notification No. 41/99. In these circumstances, we set aside the penalty imposed upon the assessees. In the result the appeal is allowed by upholding the demand but setting aside the penalty. (Dictated and pronounced in open Court)
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2009 (11) TMI 728
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... ... ..... put service are excluded, it would not apply to the vehicles used for transportation of the inputs. Plain reading of clause (k) of Rule 2 discloses that, the contention is devoid of substance. No other ground is pressed at this stage. We do not find any, prima facie, case having been made out for grant of total waiver of the amount demanded under the impugned order. However, in the facts and circumstances of the case, we find it appropriate to direct only the duty amount to be deposited, while waiving the interest and penalty amount till the disposal of the appeal. The total duty amount of Rs. 1,33,101/- (Rupees one lac thirty-three thousand one hundred and one only) to be deposited within a period of eight weeks from today. Subject to compliance of the requirement of the deposit, as above, recovery of the penalty and interest shall stay during the pendency of the appeal. Application stands disposed of accordingly. 4. To come up for reporting compliance on 8th February, 2010.
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2009 (11) TMI 727
Benefit of N/N. 13/97-Cus. and N/N. 25/99-Cus - the exemption in terms of the notifications is sought to be denied on the sole ground that in respect of the impugned goods there was failure on the part of the importer to follow the 1996 Rules and thereby not fulfilling the condition of the notification for the goods to qualify for the exemption - Held that: - the only failure of the importer was that it did not use the imported inputs in the factory registered with the jurisdictional Asstt. Commissioner in terms of Rules 3 and 4 of the 1996 Rules, but used the same for the intended purpose in another of its factories with the approval of the department. In such circumstances, we find that the assessee cannot be denied a substantial benefit for its failure to follow a procedural condition condoned by the department - appeal dismissed - decided against Revenue.
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2009 (11) TMI 725
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... ... ..... ropriate duty on the said inputs has been paid. Explanation added to the said Rule 173Q(1) very clearly mandates that the reasonable steps include a certificate issued by the manufacturer or the supplier as regards the identity and the address of the manufacturer. I find that the appellant has contravened the provisions of Rule 173Q(1)(bb). Though appellant has contravened the said provision, he has reversed the Cenvat credit, on being directed by the Superintendent of Central Excise. 8. In the facts and circumstances of the case, I find that imposing a penalty should have been sympathetically considered. 9. Accordingly, in the facts and circumstances of the case, I uphold the impugned order which confirms the imposition of penalty under Rule 173Q of the Central Excise Rules, 1944 but modify the penalty imposed on the appellant. The same shall be reduced to Rs. 5000/- (Rupees Five thousand only). The appeal is disposed off accordingly. (Pronounced in open Court on 25-11-2009)
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2009 (11) TMI 721
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... ... ..... s of law. In fact, the penalty imposable and imposed under Section 11AC is equivalent to duty amount. The same having been imposed, and in the entire impugned order there being no disclosure of any justification for imposing penalty under other provisions of law, the advocate is justified in contending that the said penalty under other provisions of law is unsustainable. The same is accordingly, hereby quashed. Consequently the penalty of Rs. 2,00,000/- imposed on M/s. MMPL under Rules 9(1), 52A, 53, 173B, 173F, 173G, and 226, the penalty of Rs. 1,50,000/- imposed on M/s. MAI under Rule 9(1), 52A, 53, 173B, 173F, 173G and 226 and penalty of Rs. 1,00,000/- imposed on M/s. Minocha Brothers under Rule 9(1), 52A, 53, 173B, 173F, 173G and 226 of the said rules are liable to be quashed and accordingly, hereby quashed. 8. Apart from the above modification, there is no case made out for interference in the impugned order and, therefore, the appeals are disposed of in the above terms.
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2009 (11) TMI 720
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... ... ..... when they received the intimation regarding the shifting of the factory. The Board has issued a Notification No. 35/01 dated 6-6-01 under Rule 9 prescribing the conditions and procedure for registration. On going through the notification, I find that none of the conditions prescribed in the notification has been contravened. Moreover, I find force in the appellant rsquo s contention that no penalty can be imposed under Rule 25(1) as neither the appellants are covered under clause (a), (b) or (c) of sub-rule(1) of Rule 25 nor they are covered under clause (d) of sub-rule (1) of this Rule as they cannot be said to have contravened any provisions of Central Excise Rules with intention to evade the payment of duty more so when entire Cenvat credit demand had been set aside by the Commissioner (Appeals). In view of this, I hold that the penalty on the appellant under Rule 25(1) is not sustainable and the same is set aside. The appeal is allowed. (Order dictated in the open Court)
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2009 (11) TMI 715
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... ... ..... by-products can also be cleared for sale in DTA (subject to achievement of NFEP) on payment of concessional duty i.e. 50 customs duty. Suitable amendment in Notification No. 2/95-C.E., dated 4-1 1995 has been carried out for implementation of this provision. Notification No. 29/2001-C.E., dated 18-5-2001 may be seen for details. rdquo 3. It is not the case of the Revenue that the total value of clearances of main product and by-product in DTA has exceeded the limit of 50 of the total export as per the foreign trade policy. It is also not the case of the Revenue that the appellants have not fulfilled NFE requirement. In any case, the appellants have to produce a proof from a Development Commissioner that the appellants have achieved the NFE under foreign trade policy. Further, the appellants have also produced a letter from Development Commissioner that the appellants have achieved NFE. Hence, the appeal is allowed with consequential relief. (Dictated and Pronounced in Court)
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2009 (11) TMI 713
Valuation - whether, in respect of supplies made in terms of DGS&D contract, the valuation under Section 4A, is applicable? - Held that: - identical issue decided in the case of PURISONS ENGINEERS PVT. LTD. Versus COMMISSIONER OF C. EX., DELHI-II [2003 (12) TMI 113 - CESTAT, NEW DELHI], where it was held that since consignments in question were cleared to DOT in terms of the requirement under Standards and Measures Act and Packaged Commodities Rules they were required to be valued under Section 4A and not under Section 4 - appeal allowed - decided in favor of appellant.
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2009 (11) TMI 711
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... ... ..... n merits. He also allowed the appeal on grounds of limitation. 4. Learned SDR reiterated the findings of the Original Authority and learned Advocate supports the decision of the Commissioner (Appeals). 5. We have carefully considered the submissions of both the sides and perused the record. The submission on behalf of the Department that in a case of supply on FOR destination basis, the sale is effected at the supplier rsquo s end is not acceptable as there is no legal basis for such claim. The Commissioner has rightly held that the freight incurred from the factory gate to the premises of the buyer which is governed by a separate contract is not to be included in the assessable value. No valid grounds have been adduced to interfere with the said finding of the Commissioner. The Commissioner has also allowed the appeal on ground of limitation. We also agree to this decision. The appeal by the Department is therefore, rejected. (Order dictated and pronounced in the open Court)
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2009 (11) TMI 710
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... ... ..... ence, according to the learned, matter is fully covered by the delivered by the Tribunal wherein it has been held that such amount is not refundable to the assessee. 3. Indeed, the Tribunal has already held that the amount which was paid as Education Cess does not form part of the duty refundable in terms of provisions of the said notification and, therefore, the impugned order needs to be stayed. Accordingly, applications are allowed and execution of the impugned order is stayed till disposal of the appeal. Applications stand disposed off.
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2009 (11) TMI 709
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... ... ..... uo s appeal has been filed, states in para-4.7 that there is no need for bringing theory of marketability. We have heard both sides on the issue. It is not in dispute that there are a number of decisions of the Hon rsquo ble Supreme Court, where it has been held that a product to be excisable must satisfy twin criteria one of manufacture and the other of marketability. It is surprising that the Board has authorized filing of this appeal stating that there is no need for bringing the theory of marketability. It would have been a different matter if evidences were adduced to prove that the intermediate sub-assemblies are marketable. That has not been done. As such, we find there is no need to interfere with the impugned order. The Department rsquo s appeal is rejected. 2. The cross-objection filed by the respondents is in the nature of comments upon/reply to the Revenue rsquo s appeal. Hence, the cross-objection is disposed off. (Order dictated and pronounced in the open Court)
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2009 (11) TMI 708
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... ... ..... E.L.T. 497 (S.C.). In the first case, the dispute was in relation to a mining lease. By the time the civil appeal was taken up by the Supreme Court, the lease had already expired. In that situation, their Lordships disposed off the appeal after observing that the judgment of the High Court would not stand in the way of the appellant (State of Bihar) granting mining lease to the respondent. In the second case, the Commissioner (Appeals) has dismissed an appeal for want of pre-deposit and his order was taken in appeal to this Tribunal. The Tribunal disposed of that appeal on merits, after dispensing with pre-deposit. This action was challenged by the department. The Hon rsquo ble Supreme Court disapproved the Tribunal rsquo s stand and remanded the case to the Commissioner (Appeals) for decision on merits. Neither of the two cases cited by the learned Counsel is of aid to the appellant. 3. In the result, we sustain the impugned order and dismiss this appeal. (Dictated in Court)
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2009 (11) TMI 706
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... ... ..... m these findings of the lower appellate authority, it would appear that nothing was hidden from the department and that there existed a dispute as to the admissibility of the credit in question. This aspect was, unfortunately, not examined by the original authority. The authority merely imposed a penalty of Rs. 1.5 lakhs on the assessee without citing any penal provision after observing that Section 11AC was not applicable. Such an order passed by the Assistant Commissioner could only have been set aside and this is what was done by the Commissioner (Appeals). We, further, observe that the learned Commissioner (Appeals) recorded a finding that there was no evidence of deliberate and willful defiance of law by the respondent inviting any penalty. This crucial finding has gone unquestioned in the present appeal. 3. For all the reasons stated hereinbefore, we sustain the order passed by the learned Commissioner (Appeals) and dismiss the appeal of the Revenue. (Dictated in Court)
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2009 (11) TMI 704
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... ... ..... le goods in contravention of any of the rules or any notification issued thereunder. It goes without saying that the identity of the goods should be specified the factum of its removal must be alleged specific rule or notification also should be mentioned in the show-cause notice. Where this is duly done by the department, the noticee cannot resist the penalty under Rule 25 on the ground that clause (a) of the Rule 25 was not specified in the show-cause notice. This reasoning is applicable to each of the remaining clauses of Rule 25, and the same is the case with clause 112(b) of the Customs Act. In the present case, the lower authorities invoked clause (a) of Rule 25 and, therefore, it is to be examined as to whether the requisite facts were pleaded or alleged in the show-cause notice. On a perusal of the notice, I find that the requisite facts were not alleged therein. 6. In the result, the penalty gets vacated and this appeal is allowed. (Dictated and pronounced in Court)
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2009 (11) TMI 702
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... ... ..... ay the duty on such waste and scrap. 5. On account of limitation, it is clear from the facts that the appellant cleared the said waste and scrap through their private challans, which was not mentioned in their monthly return filed with the department and it was only known to the department on investigation. The reliance placed by the appellant on this count are not relevant in this case as the appellant has informed the department through their monthly return/RG-23A register. Accordingly, the extended period is invocable in this case and the act of the appellant by not supplying the information to the department and clearing the waste and scrap generated through their private challans amounts to suppression of facts with intention to evade the payment of duty. Accordingly, the provisions of Section 11AC are invocable. 6. With these observations, I do not find any infirmity in the impugned order and the same is upheld and appeal is rejected. (Pronounced in Court on 26-11-2009)
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2009 (11) TMI 701
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... ... ..... regards the submission of learned DR that because of contradictory decisions, the matter has to be referred to Larger Bench, we find that Shri C.N.B. Nair, Ld. Member (Technical) was the member in both the cases has rightly pointed out by the learned advocate and further we also find that even the SDR representing the department was same. Further, after going through the notifications and the decisions of the Tribunal we find that the subsequent decisions have interpreted the notifications correctly and there is only one decision which is in favour of the Revenue and that happens to be the earliest decision. In view of the fact that subsequently there are many decisions on the issue which are in favour of the appellant and which have taken the right view, we do not consider that this is a fit case for referring the matter to the Larger Bench. 7. In view of the above discussion, appeals are allowed with consequential relief to the appellants. (Dictated and pronounced in court)
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2009 (11) TMI 700
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... ... ..... t aside. The appeal is remitted back to the Tribunal to examine the question of applicability of 11AC of the Central Excise Act, 1944 in the light of decisions in case of Union of India v. Dharmendra Textile Processors 2008 (231) E.L.T. 3 and UOI v. Rajasthan Spinning and Weaving Mills and Anr. 2009 (238) E.L.T. 3 (S.C.) 2009 (92) RLT 691 (Supreme Court) . Appeal is disposed of accordingly. rdquo 4. We find that mandatory penalty under Section 11AC of Central Excise Act, 1944 is imposable on the manufacturer and penalty on the Director was not imposed under Section 11AC of Central Excise Act, 1944. Penalty on the Director was imposed under Rule 209 of Central Excise Rules, 1944 in this case. Therefore, Section 11AC is clearly not applicable for imposing penalty on Shri G.L. Mohta, Director. Accordingly, we confirm reduction of penalty Rs. 35,000/- (Rupees thirty-five thousand only) as ordered by this Tribunal vide order dated 21-4-2008, referred supra. (Dictated in the Court)
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2009 (11) TMI 699
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... ... ..... Authority deducting the amount of duty paid on the goods cleared for export since as per Notification dated 17-9-2007, the appellants is debarred from claiming the rebate of the duty paid. The Lower Authority order deducting the amount of Rs. 57,31,054/- from the eligible refund is not proper and liable to be set aside. The appellants are eligible for the refund of said amount. rdquo 4. Even though the Commissioner has observed that Notification clearly excludes the units availing benefit of area based notification in the order he has set aside order-in-original rejecting the refund. There is no discussion or details given as to why the respondents are not (sic) eligible for refund when the Notification provides that they are not eligible. In view of large amount involved and in view of the fact that there is no logic forthcoming from the Commissioner rsquo s (Appeals) order, stay petition filed by the Revenue is allowed during the pendency of appeal. (Dictated in the Court)
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