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Central Excise - Case Laws
Showing 41 to 60 of 232 Records
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2009 (5) TMI 787
Penalty - Suppression ... ... ... ... ..... entire duty liability before the issuance of show cause notice and are not disputing the same. We find that the provisions of Section 11AC for the imposition of penalty on the appellant will not arise in this case as there is no intention to evade duty and there is also no suppression of facts. It is seen from the records that the appellant had always been in correspondence with the revenue right from 98 onwards, on the very same issue and department did not find it necessary to follow up the matter with appellant. 9. emsp In view of the foregoing reasons we find that the impugned order to the extent it upholds the penalty imposed by the adjudicating authority under Section 11AC of CE Act, 1944 needs to be set aside and we do so while upholding the orders of confirmation of duty and interest thereon. The appeal of the appellant as regards the setting aside of the penalty is allowed. (Operative portion of the Order already pronounced in open Court on conclusion of the hearing)
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2009 (5) TMI 786
Confiscation and redemption fine - Clandestine removal ... ... ... ... ..... ion in the case of Weston Components (supra) not applicable. The relevant extract from the Tribunal rsquo s said decision is reproduced below - - - it is also on record that the goods were not physically available for confiscation. Redemption fine was not to be imposed in lieu of confiscation on any goods where the goods are not physically available to be redeemed. The cited cases of Weston Components (supra) is distinguishable. In this view of the matter, we set aside the fine also---- rdquo 2. emsp As the goods were removed clandestinely by the respondent, and the same could not be seized and were not, in fact seized, the question of confiscation of the same does not arise at all. As such no infirmity is found in the order of Commissioner (Appeals) vide which he has upheld the order of the Assistant Commissioner on the above disputed point and has rejected the Revenue rsquo s appeal. As a result the present appeal filed by the Revenue is also rejected. (Pronounced in Court)
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2009 (5) TMI 785
Refund - Unjust enrichment ... ... ... ... ..... s not adduced any other evidence but to emphasis that provisions of Section 11B read with Section 12B of the Central Excise Act will come into play and it is for the claimant of the refund claim to prove that he has not passed on the incidence of duty to their customers. In this case we find that respondent has produced a certificate issued by the Chartered Accountant dated 24-7-2007 before the ld. Commissioner (Appeals). On mere perusal of Chartered Accountant rsquo s certificate, we find from the same, the essence of non-passing of the incidence of duty to their customer, has been considered by the ld. Commissioner (Appeals). 7. emsp In the absence of any evidence contrary to Chartered Accountant rsquo s certificate, we find that the impugned order of the ld. Commissioner (Appeals) is correct and legal. For the foregoing reasons, we find that the Revenue rsquo s appeal is without merits and therefore the same is rejected. Impugned order is upheld. (Pronounced in open Court)
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2009 (5) TMI 781
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... ed on payment of appropriate duty but not less than the credit availed on such scrap. It is submitted that the Department is objected the credit availed on the scrap received from the job worker. On a specific query from the Bench, Consultant submitted that when the scrap is cleared from factory premises, the duty liability is discharged as Transaction value, which is invariably more. If that be so, we find the credit availed by them is reversed, when the said scrap is removed on payment of duty. In our considered view, demanding only the amount of credit taken by them would be a incorrect proposition in law as the manufacturer who received duty paid scrap, removes the same on payment of duty, which is not less than the credit availed. A prima facie case for waiver of pre-deposit of the amount is made out. Application for waiver of pre-deposit of the amounts involved is allowed and recovery thereof is stayed till disposal of the appeal. (Pronounced and dictated in open Court)
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2009 (5) TMI 780
Demand and penalty - Clandestine removal, proof of ... ... ... ... ..... erial indicating consumption of raw material relatable to the quantity found short, evidence in the form of statements recorded from buyers of such goods or, evidence of receipt of proceeds relatable to the quantity found short. It is settled law that charge of clandestine clearance cannot be found without reliable and concrete evidence. In the circumstances the demand of duty and the consequent penalty are held to be unsustainable and these orders are vacated. However, we find that the appellants have not maintained the RG-I account and the Form V register properly and regularly as prescribed. We find that a penalty of Rs. 1,000/- (Rupees one thousand only) will meet the ends of justice in this regard. The appeal filed by the assessee is allowed but for the above penalty of Rs. 1,000/- (Rupees one thousand only) found warranted for failure to maintain the statutory accounts. The appeal is disposed of. (Operative portion of the order was pronounced in open Court on 18-5-2009)
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2009 (5) TMI 778
Penalty - Imposition of ... ... ... ... ..... AC of the Central Excise Act. It is submitted that the Show Cause Notice basic to the proceedings did not invoke suppression of facts or any other ingredient to justify invoking larger period and to impose penalty under Section 11AC of the Act. They have already made good the short-payment found by the authorities. It is prayed that the penalty of Rs. 50,000/- imposed on the appellants may be set aside. I have also heard the learned SDR who does not contest this position. 2. emsp After carefully considering the facts of the case and the submissions made by both sides I find that the Show Cause Notice basic to the proceedings though invoked larger period under Section 11A of the Act, no willful suppression of facts, fraud, collusion etc. on the part of the appellants was alleged. In the circumstances, I find that the penalty imposed under Section 11AC is not sustainable. The penalty is set aside and this appeal is allowed to that extent. (Dictated and pronounced in open court)
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2009 (5) TMI 777
Cenvat/Modvat - Limitation ... ... ... ... ..... e application of the appellants by the Customs authorities provided, there is no doubt about the receipt of the goods. It has further been held by CEGAT that such credit can also be taken beyond the period of six months by the appellants. The appellants case in respect of Bill of Entry at Sl. No. 1 to 3 is squarely covered by the ratio laid down in the said order of the CEGAT involving credit of Rs. 4,79,183/-. The appellants are, therefore, entitled to credit of Rs. 4,79,183/- involving of these Bills of Entries and the same is accordingly allowed. rdquo 3. emsp We find that the Revenue has no case that the decision of the Tribunal relied upon by the Commissioner (Appeals) has been overruled by a higher judicial forum or that the Revenue has obtained any stay order from any such forum. In the circumstances we do not find any reason to interfere with the impugned order. In the result we sustain the impugned order and reject this appeal. (Dictated and pronounced in open court)
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2009 (5) TMI 776
... ...
... ... ..... collecting the same in cases, where the payment is defaulted. rdquo 5. emsp On a very careful consideration of the issue, we find that the Commissioner (A) is not correct in stating that the present case relates to disallowance of cash discount and collecting the same in cases where payment is defaulted. It can be seen from the records that the cash discount has been given to every person. Only when there is default in payment, penal interest had been collected. It so happened that the penal interest is equal to cash discount allowed. Therefore, the ratip of the Arvind Mills case is clearly applicable to the present cases. Moreover, this Bench in the appellant rsquo s own case vide Final Order Nos. 78-80/2007 dated 4-1-2007 2007 (220) E.L.T. 408 (Tribunal) had dealt with the same issue and held that penal interest is not includable in the assessable value. Following the ratio of the same, we allow the appeals with consequential relief. (Pronounced and dictated in open Court)
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2009 (5) TMI 775
Switch gears and control panels - Exemption ... ... ... ... ..... be seen from the findings of the adjudicating authority in the impugned order. I agree with the contention of the appellants that certificate issued by competent authorities cannot be questioned as held by CESTAT Bangalore Bench in their recent judgment Andhra Sugars Ltd. v. CCE Guntur - 2005 (71) RLT 659 . Further in a similar case involving items viz., controllers and switches for making a Dusk dawn system for street lights, recently the CESTAT, Delhi have allowed the exemption under GOI Notification No. 6/2002 Rajasthan Electronics and Instruments Ltd. v. CCE, Jaipur - 2005 (68) RLT 352 . The same analogy can be drawn to the present case and exemption benefit can be allowed to the appellant which they are eligible. Therefore, the appellant is eligible for the exemption for the impugned clearances under the said notification rdquo . The Order appears to be well reasoned. Hence, we uphold the same and reject the Revenue rsquo s appeal. (Pronounced and dictated in open Court)
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2009 (5) TMI 774
Valuation - discount offered by the appellant to the dealers - after sales service - includibility -
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2009 (5) TMI 773
Confiscation - Clandestine removal ... ... ... ... ..... s not believable. I, therefore, hold that the goods loaded on the tractory trolly had been cleared clandestinely without issue of any invoice and therefore, the same along with tractor trolly have been correctly confiscated. 4. emsp As regards the duty demand in respect of shortage of 24.618 m.t. of finished goods detected by the officers vis-a-vis balance recorded in the Central Excise record, I agree with ld. DR rsquo s contention that this much shortage cannot be attributed to mistake in recording the weight of the finished goods. Moreover, it has also to be kept in mind that M.S. Bars an evasion proving (Sic) (prove) item and neither there is any satisfactory explanation for removal of the goods seized from the tractor trolly without any invoice nor there is any satisfactory explanation for the shortage of 24.618 tonnes of finished goods detected by the officers. In view of this, I find no infirmity in the impugned order. The appeal is dismissed. (Pronounced on 11-5-2009)
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2009 (5) TMI 772
Appeal to Appellate Tribunal - Limitation ... ... ... ... ..... aw that each case has to be decided based on the facts of that case. No ratio of the judgment can be applied de hors the facts. Any decision in that regard if required one can specifically quote the decision of the Apex Court in Union of India And Others, v. Dhanwanti Devi And Others, reported in (1996) 6 SCC 44. 12. emsp As regards the decision in Bhag Singh and others v. Major Daljit Singh and others reported in 1987 (32) E.L.T. 258 (S.C.) is concerned, the same was in relation to a matter pertaining to bringing legal representatives on record consequent to the death of the original litigant. Besides the decision was in the peculiar facts of the case before the Apex Court and that is clearly recorded in by the Apex Court in the judgment. 13. emsp In the facts and circumstances of the case, therefore, we do not find any sufficient cause having been made out for condonation of delay and, therefore, the application is liable to be dismissed and is accordingly hereby dismissed.
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2009 (5) TMI 771
Interest and penalty - Cenvat/Modvat ... ... ... ... ..... points out that the respondents reversed the credit and on receipt of the goods from the job workers after processing, the credit was taken on the goods. The only contention of the Revenue is that the credit was taken wrongly. Therefore, the respondents are liable for interest and penalty. There is no evidence on record to show that the credit taken is utilized. As such, we find no merit in the appeal and the same is dismissed. (Dictated and pronounced in the open Court)
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2009 (5) TMI 770
Stay/Dispensation of pre-deposit ... ... ... ... ..... ngly argued that the Notification would cover only the pipes required up to the first storage point and also only for the new plant. 5. emsp On a very careful consideration of the issue, we find that the issue is decided in favour of the appellants by the Tribunals. Moreover, the Board rsquo s Circular also appears to be favourable to the appellants. In view of this, prima facie, we find a strong case on merits in favour of the appellants. The legal contentions made by the learned JCDR can be examined in depth at the time of final hearing. Consequently, we order waiver of pre-deposit of the entire amount demanded in the impugned order till the disposal of the appeal. There shall be no coercive action by revenue even after expiry of 180 days of stay order in terms of several judgments. As the amount involved is huge, appeal to come up for hearing on 9th July, 2009. 6. emsp The Miscellaneous Application is also disposed of as infructuous. (Pronounced and dictated in open Court)
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2009 (5) TMI 769
Penalty - Valuation ... ... ... ... ..... y. 2. emsp We have heard both sides. We find that it is accepted that the receipt of free packing material received from the buyers was made known to the department voluntarily by the appellants, who had produced all the documents relating to the supply of corrugated boxes before the internal audit officers. Therefore, the charge of suppression cannot be sustained and although the assessees have not challenged the confirmation of the additional duty demand under the extended period, it does not mean that penalty also should be retained in the light of the fact that supply of free packing material to assessees was well within the knowledge of the department. We therefore hold that penalty on the respondents is not warranted, uphold the impugned order and reject the appeal. 3. emsp The prayer in the cross-objection is for rejection of the Revenue rsquo s appeal for retaining penalty and therefore, the cross-objection is allowed. (Order dictated and pronounced in the open Court)
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2009 (5) TMI 768
Appeal by Department - Maintainability - Review committee ... ... ... ... ..... P.K. Saikia, Supdt. (Appeals). The Verification of the contents of the appeal is to be made by the person who is filing the appeal whereas in the present case the appeal is being filed by the Committee of Commissioners and verification of the contents are by Supdt. only. Further we find that EA-3 form is signed by Supdt. of Central Excise but verified by the Commissioners of Central Excise. 4. emsp On the last date of hearing, the Revenue was asked to produce the original record to verify the date on which date member of Committee of Commissioners signed. The SDR produced the letter from the office of Commissioners of Central Excise, Guwahati dated 24-4-09 stating that even in the order sheet there is no date mentioned. In these circumstances, the appeal is not filed as per the provisions of CEGAT Procedure Rules therefore the same is dismissed as not maintainable. The cross-objections filed by the respondents are also disposed off. (Dictated and pronounced in the open Court)
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2009 (5) TMI 767
Penalty - Cenvat/Modvat ... ... ... ... ..... s. It is also noticed that due to change of law in respect of maintenance of records of Fuel used by them in the manufacture of final product, there is delay in reversal of credit. The Tribunal in the appellants own case as reported in 2005 (190) E.L.T. 287 held that when credit availed by the company reversed by them on their own before utilization, imposition of penalty on account of wrong availment of credit was unjustified. On a query from the Bench the learned Advocate submits that they had sufficient balance in the Cenvat account at the relevant time and they have not utilized this amount at any point of time. 6. emsp In the present case, the appellants reversed credit before issue of show cause notice which was appropriated by the Commissioner and the demand was dropped. In view of that, I find that imposition of penalty is not warranted. Accordingly, imposition of penalty is set aside. Appeal is allowed with consequential relief (Dictated pronounced in the Open Court)
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2009 (5) TMI 766
Valuation - MRP based valuation - Section 4A of the Central Excise Act, 1944 - Held that: - Where there is no requirement for declaring retail sale price, the provisions of Section 4 A will not get attracted - the respondent is not declaring the retail sale price on packages cleared to Indian Army/ITBP and is clearly indicating that the goods are for specific use of defence services only - appeal dismissed - decided against Revenue.
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2009 (5) TMI 765
Undervaluation - Suppression of value - Confiscation, fine and penalty - Demand - Revenue has collected enormous documents to sustain the charges of undervaluation or under-invoicing in respect of the clearances made by M/s. Hero Plywoods and Boards, who are the main party in the appeals
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2009 (5) TMI 763
Service of order - Appeal to Commissioner (Appeals) - Held that:- Section 37C of Central Excise Act, 1944 provides procedure for service of decisions, orders, summons etc. The department is required to send the order by registered post with acknowledgement due and only when this option fails to result in service then other options are required to be exercised.
There is no evidence on record to show that department had sent the order to the appellant by registered post. In the absence of any evidence to show that order has been properly served, contention of the appellant that order was received by them on 22-5-2008 is to be accepted.
The matter is remanded to Commissioner (Appeals) to decide the matter on merits treating the same as within time limit.
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