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Central Excise - Case Laws

Showing 221 to 232 of 232 Records

• 2009 (5) TMI 91
  

  Exemption – Chewing tobacco - The appellant firm is a manufacturer of un-branded chewing tobacco and they were availing the benefit of Notification No. 8/2003-C.E., dated 1-3-03 - A new levy on tobacco product was imposed with effect from 1-3-2005 and by a Notification No. 6/2005 dated 1-3-05 - The appellant, entertained a doubt as to whether the new levy shall be applicable to them as they were availing exemption Notification No. 8/03 and they were in correspondence with the Excise authority - It is not the case where the department was kept in darkness by the appellant about the manufacture of unbranded chewing tobacco as they have filed necessary declaration for the purpose of availing the Notification No. 8/2003 - Further, we find that the appellant has been seeking clarification from the department regarding applicability of new levy. Further, on the basis of clarification given during the visit of the officers, they immediately took the registration and paid up dues as per the effective rate of duty applying the notification 6/2005. The Notification No. 6/2005 does not contain any condition that the benefit under the said Notification is available only to a registered unit. - we set aside the demand of duty in excess of the duty payable and paid in terms of Notification No. 6/05

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• 2009 (5) TMI 90
  

  Equal amount of penalty has been imposed under Section 173Q for suppression - The fact that nylon chips emerges as a product during the manufacture of nylon filament yarn is true in respect of dutiable as well as non-dutiable nylon filament yarn varieties. Merely because the Department chooses to treat the polyamide chips/nylon chips as final product that too selectively in respect of exempted final product, it cannot be held that the appellant had suppressed any relevant information to the department. Therefore, the imposition of penalty under Section 173Q is not warranted.

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• 2009 (5) TMI 87
  

  Excess payment – This appeal filed by the department is against grant of refund - The invoice is primary evidence of amount having been recovered by the respondent from the buyer. The burden was high on them to prove to the contra, i.e., to show that the burden of duty was not passed on to the buyer - claim of the respondent that they retained the above amount with them without passing on the burden to the buyer, by making adjustments in their General Ledger Account, which adjustment is referred to as “rectification”, is not acceptable - the respondent was not entitled to get cash refund of the amount on account of the bar of unjust enrichment - It is settled law that the bar of unjust enrichment cannot be got over on the sole ground of the price of the goods remaining constant during the period around the date of sale of the goods

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• 2009 (5) TMI 86
  

  Application for restoration of appeal - the appeal was dismissed on 5-11-2007. The present application is filed on 29-8-2008. The period of filing the appeal is three months from the date of communication of the order. It is true that there is no specific provision under the Central Excise Act, 1944 or the Rules framed thereunder prescribing the period of limitation for filing the application for restoration of the appeal dismissed either for non compliance of the provisions of Section 35F of the Central Excise Act, 1944 or otherwise. Further, under no stretch of imagination, there could be a justification to file an application at the sweet will of the applicant. Since the original period for filing the appeal is itself described as three months, the application for restoration will have to be filed within the maximum period of three months from the dismissal of the appeal. In any case, any application filed beyond such period has to disclose cause for the delay. In the present application, there is no cause disclosed – application dismissed

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• 2009 (5) TMI 82
  

  Non appearance – request for adjournment – held that - Advocate’s engagement in another Court is no ground for adjournment and the law in that regard is well settled, besides the fact that the matter in hand, which was fixed for hearing today, was well known to the Advocate, who has written the said letter, well in advance. One fails to understand what prevented the Advocate from making necessary arrangements to ensure attendance of the representative of the appellant in the Tribunal for today’s hearing. His personal inability of appearing today before this Tribunal on account of his personal case at Allahabad High Court cannot be a ground for adjournment of the matter in hand. In the circumstances, request for adjournment is rejected and the application for stay is dismissed for default.

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• 2009 (5) TMI 74
  

  Appeal to tribunal – section 35B - According to the petitioner, the arguments in the appeal were heard by the Commissioner (Appeals) on 14-5-2008 but despite lapse of considerable time, orders in the appeal were not pronounced by the Appellate Authority forcing the petitioner to approach this Court for a declaration to the effect that the failure of the Appellate Authority to decide the appeal within a reasonable time was illegal, arbitrary and mala fide. – held that - we feel that in case the petitioner is aggrieved of the order passed in the appeal, he ought to seek remedy against the same in appropriate proceedings in accordance with the statutory provisions. If the delay in disposal of the appeal is said to be a ground of attack against the order, it shall be open to the petitioner to urge the said ground also, in which event, the Tribunal before whom the appeal is filed is expected to examine the said aspect also. – writ petition dismissed.

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• 2009 (5) TMI 47
  

  Reference to Larger Bench – Power of Reference Bench – Issue: Credit on steel items like angles, joists, beams, channels, bars, flats, etc. are used in the construction work - The referral Bench therefore has all the powers to refer the matter to the Larger Bench at the stage it considered appropriate - once the decision is taken by the referral bench which is in conflict with the precedent decision whether the wording used in the order of the referral bench is “prima facie view” or “final view” is immaterial as long as inconsistency in the earlier judgment has been brought out appears reasonable and acceptable

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• 2009 (5) TMI 21
  

  Whether there is power for condonation of delay in filing an appeal under Section 35-G of the Central Excise Act, 1944 - held that the High Court has no power to condone delay in seeking reference under Section 35-H - That being so this appeal deserves to be dismissed

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• 2009 (5) TMI 15
  

  Once the conditions specified u/s 11AC of the Central Excise Act are satisfied, penalty becomes mandatory and there is no scope of discretionary power - payment of differential duty, whether before or after the show cause notice is issued, can not alter the liability for penalty - the conditions for which are clearly spelled out in section 11AC of the Act - the stand taken by the CESTAT (Tribunal) has been rejected by the Apex Court in which tribunal waived the penalty stating that "the assessees had made payment of the demands simply in order to buy peace and to avoid any litigation. In those circumstances the imposition of penalty was wholly unjust, unwarranted and unauthorised in law".

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• 2009 (5) TMI 13
  

  SCN issued proposing demand and penalty - exemption under Notification No.202/88 - If on the materials produced by the parties, the Tribunal had arrived at a finding of fact that there had been no suppression on the part of the appellant after 22nd January, 1991, the question of invoking the extended period of jurisdiction did not arise - SCN dated 28th March, 1994 issued after the expiry of the period prescribed u/s 11A, was clearly barred by limitation - whether a party is guilty of suppression of fact or not is essentially a question of fact. It does not per se give rise to substantial question of law per se.

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• 2009 (5) TMI 11
  

  Constitutional validity of Rule 96ZQ(5)(ii) which stipulate that penalty equal to an amount outstanding at the end of the stipulated period was leviable – conflict of opinions between the judgments of the Division Bench of this Court - Division bench of SC in case of Dharmendra Textile, referred the matter to the larger Bench for its decision - three Judge Bench of this Court finally held that the impugned Rule 96ZQ is mandatory – consequently, challenge to the vires of Rule 96ZQ(5)(ii) in the Original Writ Petition before the High Courts stands revived – in view of above we remit this entire batch of Civil Appeals to the respective High Courts

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• 2009 (5) TMI 3
  

  Territorial jurisdiction of HC - which is the forum where an order can be challenged - place where the cause of action had arisen and where the original adjudication had taken place would constitute forum conveniens for all the parties concerned and it cannot be ignored - It is not a moot question that if CESTAT had an establishment in Uttar Pradesh, the Plaintiff would have to file its appeal there. What is irrefutable is that the Plaintiff cannot contend that it is inconvenient to approach the High Court in Uttar Pradesh where its factory and offices are located - Appeal is returned to be filed in the appropriate Court in accordance with law

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