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Central Excise - Case Laws
Showing 61 to 80 of 232 Records
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2009 (5) TMI 761
Remand order - Scope of - Adjudication order - Penalty - Imposition of - Held that: - neither the penalty nor the demand of interest on duty is liable to be contested on the ground that there was no determination of duty in this case - there can be no valid challenge against the penalty on the ground that the Cenvat credit in question was reversed prior to issue of the show-cause notice - appeal dismissed - decided against appellant.
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2009 (5) TMI 760
Demand and penalty - Cenvat/Modvat credit - Removal of inputs to sister unit - Held that: - The situation was revenue neutral as the sister unit of respondents could have availed credit of the duty had the respondents paid it at the time of removal of inputs. Therefore, intention to evade duty could not be attributed, nor larger period invoked under Section 11A, penalty imposed under Section 11AC and interest demanded under Section 11AB - appeal dismissed - decided against Revenue.
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2009 (5) TMI 759
Order of Commissioner - scope of SCN - denial of benefit of N/N. 9/2000-C.E., dated 1-3-2000 - Held that: - The ground on which the lower appellate authority has denied the benefit of the notification is not a ground either contained in the SCN or a ground on which the benefit was denied by the adjudicating authority. It is a new ground trotted out for the first time by the Commissioner. He has traversed beyond the SCN and the adjudication order which is not permissible in law - appeal allowed - decided in favor of appellant.
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2009 (5) TMI 758
Demand - Limitation ... ... ... ... ..... n filing monthly returns and also cost data. Another point to be noted is in the impugned order, the Commissioner (Appeals) has set aside the penalty imposed on the company and also on the Manager (Accounts) on the ground that the appellants have not contested the demand of duty on merits. In any case, when the Appellate Authority is satisfied that there was no cause for imposition of penalty, he ought to have held that the demand is barred by limitation. I am satisfied with the fact that the show cause notice is barred by limitation. There is no merit in the impugned order. Hence, the appeal is allowed with consequential relief. rdquo 10. emsp In view of the foregoing reasons and respectfully following the Tribunal rsquo s decision given in respect of the sister concern of appellant, we are of the view that the impugned orders are not sustainable and liable to be set aside and we do so. Both the appeals are allowed with consequential relief, if any. (Pronounced on 29-5-2009)
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2009 (5) TMI 757
Penalty - Non-payment of duty - Physician’s samples ... ... ... ... ..... me payable. In view of the clear failure on the part of the appellant to calculate and pay duty, penalty is correctly imposed by the Commissioner (Appeals). 4. emsp I find that Section 11A(2B) clearly provides that once a person who is liable to pay duty, pays duty and interest etc. before service of notice and informs the Central Excise officers, Central Excise Officers shall not service any notice to demand the duty. Exception is provided in the explanation which provides that where the short levy occurred because of fraud/suppression/mis-statement etc. with intent to evade duty, the provisions are not applicable. Therefore, once the Commissioner (Appeals) comes to the conclusion that there was no mis-statement or suppression etc. with intent to evade payment of duty, the question of imposition of penalty does not arise. In view of the clear legal provisions, the penalty imposed on the appellants is set aside and the appeal is allowed. (Dictated and Pronounced in the Court)
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2009 (5) TMI 756
Refund - Implementation of Tribunal Order ... ... ... ... ..... 33 (S.C.) that Revenue is bound to follow an order of the appellate authority unless operation thereof is suspended by a competent court. The order dt. 25-8-06 of the Tribunal has been appealed against by the Revenue however, no stay of operation of the order has been directed by any superior forum. Therefore, the authorities below had no option but to carry out the direction and implement the Tribunal rsquo s order. We also note that CBEC Circular No. 398/31/98-CX., dt. 2-6-98 directs that refund claims should be expeditiously disposed of within a period of 3 months from the date of receipt of application. 3. emsp We, therefore, direct the authorities below to implement our order by taking over the surrendered goods under Surrender Certificate and to sanction refund to the assessees as expeditiously as possible, preferably within 3 months from the date of receipt of this order. 4. emsp Miscellaneous application is disposed of as above. (Dictated and pronounced in open Court)
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2009 (5) TMI 755
Order of Commissioner (Appeals) ... ... ... ... ..... by the said authority has been allowed a reasonable opportunity, - (a) emsp to examine the evidence or document or to cross-examine any witness produced by the appellant or (b) emsp to produce any evidence or any witness in rebuttal of the evidence produced by the appellant under sub-rule (1). rdquo 6. emsp In the present case, it is seen that the Commissioner (Appeals) allowed the deduction on the basis of statements placed by the respondents. Admittedly, the said statement was not produced before the original authority. There is no indication in the impugned order that the Revenue was given any opportunity to defend their case. 7. emsp In view of that, we set aside the impugned order and remand the matter to the original authority to examine the deduction on equalized freight as claimed by the respondents. Needless to say that the Respondent shall be given reasonable opportunity to put forward its case before passing any order. All the appeals are allowed by way of remand.
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2009 (5) TMI 754
Refund - Adjustment against demand ... ... ... ... ..... oods is assessed finally in accordance with the provisions of these Rules, the duty provisionally assessed shall be adjusted against the duty finally assessed, and if the duty provisionally assessed falls short of or is in excess of the duty finally assessed, the assessee shall pay the deficiency or be entitled to a refund, as the case may be. rdquo We, therefore, hold that there is no legal infirmity in the impugned order permitting adjustment of excess payment against short payment and uphold the impugned order and reject the appeal of the Revenue. 3. emsp The prayer of the assessees for sanction of refund of Rs. 25,33,000/- to them instead of credit to the Consumer Welfare Fund, as the bar of unjust enrichment is not applicable in case of such adjustment, is rejected for the reason that there is no challenge by the assessees to the direction by the Commissioner (Appeals) for crediting the adjusted amount to the Consumer Welfare Fund. (Dictated and pronounced in open court)
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2009 (5) TMI 753
Valuation - Refund - Unjust enrichment ... ... ... ... ..... goods are cleared and sold without payment of duty, the price realised has to be treated as inclusive of the excise duty due and the duty liability has to be arrived at on the value so worked out. In the instant case, it is the common case of the parties that the appellants had paid an amount of Rs. 4,20,886/- treating the sale price of the CTD bars as the value. When the value is correctly worked out, the duty liability on the impugned clearances was only Rs. 3,62,833/- and the appellants had paid an excess amount of Rs. 58,053/-. As the entire duty amount was paid subsequent to the impugned clearances, refund of the excess duty paid does not attract the vice of unjust enrichment. The appellants are entitled to refund of Rs. 58,053/- claimed by them. Accordingly, we vacate the impugned order as not sustainable in law and allow the appeal filed by M/s. V.D.S.R. Rolling Mills with consequential relief. (Operative portion of the order was pronounced in open Court on 28-5-2009)
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2009 (5) TMI 752
Penalty - Imposition of - Shortage detected during stock verification ... ... ... ... ..... es the findings of the Commissioner (Appeals). He submits that the appellants deposited the duty after detection by the Department. He also submits that the appellants failed to give any proper explanation on the shortage of goods and, therefore, the penalty under Section 11 AC of the Act is liable to be invoked. 4. emsp After hearing both the sides and on perusal of the records, we find that the shortage was detected during stock verification. It is noted that the appellants cleared the goods bearing the brand name of other person under the cover of central excise invoice. Ld. Advocate is not disputing the demand of duty, which they have already deposited. There is no materials available for clandestine removal of the goods. Hence, the penalty under Section 11 AC of the Act is not warranted in this case. Accordingly, the demand of duty is upheld. The penalty is set aside. The appeal is disposed of in the above terms. (Order dictated and pronounced in open court on 28-5-2009)
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2009 (5) TMI 750
Refund claim by buyer - Limitation - Protest payment, proof ... ... ... ... ..... the Central Excise department which has already been settled in the two rounds of litigation. The appellant has entered the fray only in 1996 and it cannot be said that they have made the payment under protest. The protest, if any, made to the supplier can not be treated as protest to the Department. Further, when payment has been settled between the buyer and the seller, the question of protest also does not arise. Before the amendment in 1991, the claim should be made within 6 months from the date of payment of duty and after the amendment, the claim by any buyer has to be made within six months from the date of purchase. In other words, prior to the amendment, the buyer had lesser time to claim the refund. In either case, the appellant has not claimed the refund within the time limit prescribed. Under these circumstances, the order of the Commissioner (Appeals) rejecting the refund claim appears to be legal and reasonable. 8. emsp In view of the above, appeal is rejected.
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2009 (5) TMI 749
Demand - Clandestine removal - Cum-duty benefit - Penalty - Quantum of ... ... ... ... ..... ip firm with his relatives as partners, the entire activities of the partnership firm and those of fictitious firm, M/s. Dilsher Chemicals were run only by Shri Paramjit Singh. We have not been shown any role of the other partners. Considering the peculiar facts and circumstances of the case, we hold that penalty imposed under Section 11AC on the partnership firm is sufficient and there is no need for separate penalty on Shri Paramjit Singh. Accordingly, the penalty of Rs. One lakh on Shri Paramjit Singh is set aside. 7.4 emsp We do not find any reason to interfere with the confiscation of the goods valued at Rs. 1,02,000/- and redemption fine imposed on the same as we find that the goods have been manufactured without registering with the Excise authorities and was not accounted in the statutory records. The redemption fine imposed is also not excessive. 8. emsp The appeal of Shri Paramjit Singh is allowed and appeal of M/s. Pumm Chem India is disposed of on the above terms.
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2009 (5) TMI 748
Stay/Dispensation of pre-deposit - Cenvat/Modvat - Capital goods ... ... ... ... ..... s been hired from a non financing company, credit is not admissible. He also cited several decisions in support of this contention. The learned JCDR, on the other hand submitted that matter is arguable and requires detailed consideration. 3. emsp We find that appellants have made out a strong prima facie in their favour. The rule actually extends the benefit even in cases where machinery is hired from a financing company and the interpretation by the Revenue prima facie is not warranted. We also find that the Tribunal in Toshi Auto India Ltd. v. C.C.E., Delhi reported in 2007 (213) E.L.T. 627 (Tri. - Del.) has waived pre-deposit in a similar case. Taking note of the provisions of the rule, arguments advanced on behalf of the appellants and the decisions cited, we waive the requirement of pre-deposit under Section 35F of Central Excise Act, 1944 of duty amount demanded as well as penalty and stay the recovery of the same during the pendency of the appeal. (Pronounced in Court)
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2009 (5) TMI 747
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... he equal amount. In this case the dispute is in respect of the valuation of captively consumed goods. The Revenue wants to assess the goods as per the provisions of Rule 9 read with Rule 8 of Valuation Rules, 2000. The contention of Applicant is that 99 of the goods manufactured were cleared by independent buyers and the price at which the goods are being sold to independent buyers which is almost the same at which the goods being transferred to the other units and this fact was specifically mentioned in the reply to the show cause notice. 4. emsp We find that as the goods which is being sold to independent buyers hence the price of the goods is available which is almost same at which the goods were being transferred to the other units. In these circumstances prima facie we find Applicant had a strong case in their favour. Pre-deposit of duty and penalty is waived and recovery of the same is stayed. 5. emsp Stay petition is allowed. (Pronounced and dictated in the open court)
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2009 (5) TMI 746
Stay/Dispensation of pre-deposit - Cenvat credit ... ... ... ... ..... workers. 2. emsp We find that the relevant Rule namely 4(5)(a) of the Cenvat Credit Rules, 2004, prima facie permits goods being sent directly to job workers. We also note that the applicants throughout had taken credit on the capital goods when scrap was received back in their factory from job workers, after processing. In the circumstances, the applicants have made out a strong prima facie case for unconditional waiver in the light of Tribunal rsquo s decision in the case of Supreme Marble and Granites Ltd. v. CCE, Jaipur reported in 2005 (192) E.L.T. 888 (Tri.-Del.). We, therefore, waive predeposit and stay recovery of the adjudged dues pending the appeal. (Order pronounced and dictated in the open Court)
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2009 (5) TMI 745
Excisability - Taxable event is manufacture of goods in India - Additional Customs duty - Silk fabrics - Woven silk fabrics - Exemption - Cenvat/Modvat
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2009 (5) TMI 744
Appeal to Appellate Tribunal - Limitation ... ... ... ... ..... available with them, there was no necessity for them to prefer the present appeal and only now on being advised legally to file the appeal, they had filed the appeal belatedly. However, there is no basis for the bona fide belief. The company is an existing one. There is no conformation by the applicant that they had handed over a copy of the impugned order received by the Chairman and Managing Director on 8-1-2007, to the Official Receiver for further action in the matter. The non-availability of records is also no ground for a belief that no appeal is required to be filed against the order confirming demand and imposing penalty. 6. emsp As the reasons given by the applicant for the delay are not found to be sufficient or satisfactory, we decline to condone the delay. The COD application is accordingly dismissed. As a consequence, the stay application is also dismissed and the appeal is also dismissed as barred by limitation. (Order dictated and pronounced in the open Court)
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2009 (5) TMI 743
Cenvat/Modvat - duty paying documents - eligible Documents for taking credit - Rule 7(1) of the Cenvat Credit Rules, 2002 -
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2009 (5) TMI 742
Newsprint - Exemption under Notification No. 23/98-C.E. ... ... ... ... ..... printing of newspaper that means newsprint which is intended for printing of newspaper and (2) the manufacturer of newsprint has to be specified under Schedule I of the Newsprint Control Order, 1962, and supplied against a purchase order placed upon such manufacturer by a newspaper which is registered by the Registrar of Newspapers for India. There is no dispute that the order dt. 13-8-93 issued in exercise of powers conferred by Section 3 of the Essential Commodities Act and in pursuance of Schedule I of the Newsprint Control Order, 1962 specifies the respondent as a mill producing newsprint. Therefore, both the conditions of the notification have been satisfied by the respondent paper mill. Therefore, there is no infirmity in the impugned order extending the benefit of the exemption under the notification to the respondent paper mill. We, accordingly, uphold the order of the Commissioner (Appeals) and reject the appeal of the Revenue. (Dictated and pronounced in open court)
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2009 (5) TMI 741
Cenvat/Modvat - Capital goods - Penalty - Quantum of ... ... ... ... ..... e show-cause notice, the requirement is only of payment of 25 of the credit amount by way of penalty. 3. emsp We, therefore, hold that credit of Rs. 1,74,987/- is admissible to the appellants and that the assessees are liable to pay only 25 of Rs. 7,67,080/- as penalty due to taking ineligible credit of the above mentioned amount of Rs. 7,67,080/- We also clarify that no penalty is required, that the assessees are not liable to any penalty for the credit of Rs. 1,74,987/- to which we have held that they are eligible. The appeals are thus allowed in the above terms with consequential relief. The assessees have paid a sum of Rs. 50,000/- towards penalty in terms of the order passed by the Tribunal. As we have held that only 25 of the credit amount of Rs. 7,60,080/- is required to be paid as penalty, the balance payment of penalty shall be paid within 30 days of the date of receipt of this order. The appeal is thus partly allowed as above. (Dictated and pronounced in open court)
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