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Central Excise - Case Laws
Showing 81 to 100 of 232 Records
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2009 (5) TMI 740
Cenvat/Modvat - Utilization of credit ... ... ... ... ..... case, the appellant is treated as a service provider when he it service tax on transport service. Corollary of it is that the transport involved is an output service. Therefore, the finding of the Commissioner that since the appellants are manufacturers of excisable goods they cannot be treated as provider of output service is not sustainable. This Tribunal rsquo s decision in the case of Nahar Industrial Enterprises Ltd. also supports the appellant rsquo s case. rdquo In the case of Nahar Industrial Enterprises Ltd., reported in 2007 (7) S.T.R. 26 (Tribunal) 2007 (80) RLT 482 (CESTAT-Mum.) it has been held that in view of Rule 3(4) of Cenvat Credit Rules of Cenvat Credit can be utilized by the manufacturer for payment of service tax on GTA service. 3. emsp In view of the above decision, I find that impugned orders are not sustainable. Accordingly, impugned orders are set aside. All the appeals are allowed with consequential relief. (Dictated and pronounced in the Open Court)
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2009 (5) TMI 739
Rectification of mistake - Error apparent on record ... ... ... ... ..... for recall of the order dated 30-11-2007 and to rehear the appeals. 3. emsp Considering the law laid down by the Apex Court in D.P. Chadha v. Triyugi Narain Mishra reported in AIR 2001 Supreme Court 457, the applicant is justified in contending that failure on the part of the Tribunal, to consider the specific ground raised in the appeal memo in spite of the fact that the appeals were disposed of on merits and that too in the absence of the advocate for the appellant, clearly justifies the exercise of powers under Section 35C(2) of the said Act for recall of the order dated 30-11-2007 in the said appeals and to rehear those appeals on merits. 4. emsp Accordingly, the applications are allowed for the reasons stated above and the order dated 30-11-2007 in the Appeals No. E/2937, 2938, 2939, 2940 of 2004 is hereby recalled and said appeals are restored to the Board. The Registry is directed to fix those appeals for regular hearing on 17-8-2009.The applications stand disposed of.
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2009 (5) TMI 737
Refund - the contention of the revenue is that as the amount in question was voluntarily paid by the present respondents, therefore, there is no question of refund - Held that: - We find that the adjudicating authority has not appropriated the amount which was with the revenue. Therefore, we find no infirmity in the impugned order whereby the Commissioner (Appeals) held that the present respondents are at liberty to take appropriate steps for refund of the amount - appeal dismissed - decided against Revenue.
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2009 (5) TMI 735
Appellate order - Dismissal of appeal on three grounds ... ... ... ... ..... llate authority should not have discussed the merits in that case. In any case, I find that the appellants have not been put to a notice on the ground of limitation and were not called upon to show as to why their appeal should not be disallowed on limitation ground. The appellant rsquo s explanation on this ground is not on record. I also further note that the appellants were given two weeks rsquo time to deposit the directed amount. The appellants have not explained in their memo of appeal as to why the said amount was not deposited by them or whether any modification application was filed before Commissioner (Appeals). 4. emsp For the above reasons, I set aside the impugned order and remand the matter to Commissioner (Appeals) for fresh decision. Needless to say that the appellants would be given effective opportunity to explain their case in person. 5. emsp Appeal is, thus, allowed by way of remand. Stay petition also gets disposed off. (Dictated and Pronounced in Court)
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2009 (5) TMI 734
Cenvat/Modvat - Jobwork ... ... ... ... ..... rned advocate that the appellants having manufactured the goods on job work basis in terms of Notification No. 214/86, which allows movement of input from principle manufacturer rsquo s factory to the job worker only on the condition of principle manufacturer paying duty on the final product, the observations made by Commissioner (Appeals) cannot be upheld. In any case, I find that the appellate authorities have only expressed a doubt about the non-payment of duty by the principle manufacturer and has not come to a final conclusion about such non-payment. Even the doubt is also not justified in view of the scope and provisions of notification No. 214/86 and in view of the admitted fact of the appellant having done the job work in terms of the said notification. Accordingly, I find no merits in the impugned order and set aside the same. 6. emsp Appeal is allowed with consequential relief to the appellant. Stay petition also gets disposed off. (Dictated and Pronounced in Court)
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2009 (5) TMI 733
Refund claim - Limitation ... ... ... ... ..... im on 22-12-2003 on the ground that there are certain calculation mistakes in the earlier refund. The amount of refund claim on 22-12-2003 was held to be time barred as the same is filed in pursuance to the order passed by Commissioner (Appeals) Dt. 8-8-2002. The refund claim as per the provisions of Section 11B of the Central Excise Act is to be filed within 6 (six) months during the relevant period. 4. emsp The only contention of Appellants is that Revenue filed Appeal against the order passed by Commissioner (Appeals) before CESTAT. The same was dismissed on 17-9-2003. Hence the subsequent refund is not time barred. 5. emsp We find that as the refund claim in respect of amount in dispute was filed on 22-12-2003 in pursuance to the order passed by Commissioner (Appeals) dated 8-8-2002 i.e. beyond the limitation period prescribed under the Central Excise Act hence we find no infirmity in the impugned order and Appeal is dismissed. (Pronounced and dictated in the open Court.)
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2009 (5) TMI 731
Cenvat/Modvat - Capital goods ... ... ... ... ..... nt year. All that the Rule requires is that the capital goods should be in possession and use of the assessee in the subsequent years. In our view this condition has been fulfilled in respect of the present Appeals. 6. emsp Learned Departmental Representative (Jt. CDR) argues that today only Stay Petitions should be taken up and the Appeals can be decided later on at an early date. However, in view of the clear position of law, we do not find such submission by ld. JCDR reasonable and hence we reject the same. Keeping in view the legal position as analyzed above, we are of the opinion that the Appellants are entitled to take 50 of the balance credit in the subsequent year since they were having the possession of the impugned capital goods and they have used the same in the subsequent years as required under the Rules. Accordingly, the Stay Petitions are allowed, the impugned orders are set aside and all the five Appeals are allowed. (Pronounced and dictated in the open Court)
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2009 (5) TMI 730
Cenvat/Modvat - Deemed credit ... ... ... ... ..... ices. The invoice should carry a declaration that appropriate duty of excise had been paid on the goods under the provisions of Section 3A of the said Act. We find that key condition of the notification is that input should have suffered duty under Section 3A of the Central Excise Act. As per the relevant provisions governing availment of Cenvat credit a manufacturer is entitled to avail credit of duty paid within six months of the date of issue of the invoice. In the instant case, Revenue has no case that the appellants had received inputs which had not suffered duty under Section 3A of the Act or that the inputs had been received and credit not, taken within six months of the date of the respective invoices. In the circumstances, we find that the impugned order denying credit of Rs. 1,26,950/- and sustaining penalty of Rs. 25,000/- on the appellants is not sustainable. In the result, we vacate the impugned order and allow this appeal. (Dictated and pronounced in open Court)
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2009 (5) TMI 727
Appeal - Limitation - Rectification of mistake ... ... ... ... ..... sed to the Bangalore Plant but only to the Corporate Office. When we scrutinize both the addresses, we find that the Plant as well as the Corporate Office are situated in a place called lsquo Dooravaninagar rsquo . When the communication was sent to the General Manager of the Corporate Office, it would not be difficult for him to send to the concerned person, whether he is in the plant or in other place for taking necessary action. The fact that the communication from the department was received in the Corporate Office is not disputed. The appellant rsquo s officers in-charge of the appeals had been very careless in not appealing to the Commissioner (Appeals) in time. We have also carefully gone through the impugned Order-in-Appeal. We have taken all these things into account and passed the Final Order No. 735/08 dated 1-7-2008. In fact there is no factual mistake at all in the said Final Order. Therefore the ROM application is rejected. (Pronounced in the court on 19-5-2009)
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2009 (5) TMI 726
Stay/Dispensation of pre-deposit - Penalty ... ... ... ... ..... msp We have been compelled to pass the order for deposit of Rs. 3 lakhs (Rs. three lakhs) at this stage when we are convinced that the modus operandi followed by the appellant was questionable. Our order to the above extent has gone to say that the appellant has prejudiced interest of Revenue for which protection of its interest was sine qua non following the ratio laid down by Apex Court in the case of Asstt. Collector v. Dunlop India Ltd. - 1985 (19) E.L.T. 22 (S.C.) and in the case of Benara Valves Ltd. v. CCE - 2006 (204) E.L.T. 513 (S.C.) 2008 (12) S.T.R. 104 (S.C.). 5. emsp With our aforesaid observations and direction, we dismiss the stay application but granted a limited remand in the manner indicated above disposing the appeal. In view of deposit of Rs. 3 lakhs (Rs. three lakhs) ordered as above, there shall be no further deposit by Amarjeet Singh for hearing his appeal. 6. emsp Both appeals are remanded dismissing stay application. (Order dictated in the open Court)
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2009 (5) TMI 725
Remission of duty - Show cause notice - Natural justice ... ... ... ... ..... not require any show cause notice on the subject on which application is filed, unless there is specific requirement in that regard under a statutory provision. There being no such requirement for dealing with the application for remission, question of show cause notice cannot arise. 16. emsp For the reasons stated above, therefore the impugned orders are hereby set aside and matter remanded to the Commissioner, Allahabad to deal with the same i.e. the matter related to demand of duty as well as the one relating to the application for remission of duty simultaneously and after hearing the parties. 17. emsp Considering the fact that the matters relate to the year 2002, the authorities are expected to dispose of the same as expeditiously as possible and in any case before December, 2009. Both the parties are expected to extend co-operation to the authorities for expeditious disposal of the matters. 18. emsp The Appeals and the stay applications stand disposed of in above terms.
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2009 (5) TMI 724
Penalty - Quantum of ... ... ... ... ..... Rules, 2002. 2. emsp In the impugned order, the Commissioner (Appeals) observed that there is no material on record to suggest that there was any element of mens rea on the part of the respondent. The shortage was detected during stock verification. 3. emsp I find that there is no material available that the goods are cleared clandestinely. The Hon rsquo ble Punjab and Haryana High Court in the case of Commissioner of Central Excise, Ludhiana v. Omkar Steel Tubes Pvt. Ltd. reported in 2008 (221) E.L.T. 200 (P and H) held that penalty can be imposed as long as various elements envisaged by Section 11AC of the Central Excise Act, 1944 are satisfied including presence of mens rea. It is already observed that in the present case, there is no material available of clandestine removal of the goods. So, I do not find any reason to interfere the order of the Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is rejected. (Order pronounced in open court on 15-5-2009)
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2009 (5) TMI 723
Stay/Dispensation of pre-deposit - Spent Methanol ... ... ... ... ..... riginal and mentioned that the product cleared is not spent methanol but distilled and purified. Therefore, according to her, it should suffer duty. 5. emsp On a very careful consideration of the matter, we are of the view that in clearing the spent methanol, we cannot say that the manufactured product is spent methanol. Spent methanol is a waste product. Assuming that purified methanol has been cleared, we do not find any process of manufacture as the input itself is methanol. In these circumstances, we are of the view that the applicants have prima facie a case in their favour. Moreover, the cited decisions are also in their favour. The learned Advocate states that the BIFR proceedings are on. In view of the above, we order full waiver of the pre-deposit of the dues demanded in the impugned order. No coercive measures should be taken by Revenue till the disposal of the appeal. The stay order will continue even after lapse of 180 days. (Pronounced and dictated in open Court)
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2009 (5) TMI 722
Rectification of Mistake - Error apparent from face of record ... ... ... ... ..... shall be 3003.20 we direct that the said sub-heading be read as 3003.20 instead of 3303.20. This disposes the second proposition of the miscellaneous application. (iii) So far as the third proposition is concerned. Both sides agree that it does not bring incongruity in the substance of the order. Therefore, this proposition is not pressed and not answered by us. (iv) So far as the fourth proposition made aforesaid by Revenue to rectify the error in Para 9 at page 6 in 3rd and 4th lines of the order is concerned that reads as 3001.31. Both sides/suggest that this figure should be read as 3003.31 instead of 3001.31. We direct so. This disposes the fourth proposition in the rectification application. 3. emsp In view of our aforesaid direction, the order passed by the Tribunal on 4-8-2008 2009 (236) E.L.T. 506 (Tribunal) should be read with the amendment ordered as aforesaid. This disposes all the four miscellaneous application of Revenue. (Dictated and pronounced in open Court)
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2009 (5) TMI 721
Appeal to Appellate Tribunal - Limitation ... ... ... ... ..... . (b) Zuari Cement Ltd. v. CC and CE, Tirupati - 2007 (80) RLT 409 (CESTAT-Ban.) In this case, delay of 47 days was condoned because concerned officer left the applicant-company without handing over the papers and company came to know about order when recovery proceedings were started. (c) Krishna Couriers v. CCE, Nasik - 2008 (223) E.L.T. 92 (Tribunal-Mumbai) 2008 (9) S.T.R. 86 (Tribunal). In this case, delay of 8 months was condoned as the order copy received by the employee was not given to the assessee and the said employee left the services cited as reasons for delay. 5. emsp In the present case, it is seen that the employee mis-placed the order and no action was taken by the applicant-company. 6. emsp In view of that, I do not find any reason for condoning the delay in filing appeal. Accordingly, the application for condonation of delay in filling appeal is rejected. Hence, the appeal and stay application are also dismissed. (Order pronounced in open court on 15-5-2009)
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2009 (5) TMI 719
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... 007 (219) E.L.T. 911 (Tribunal-Mumbai) held that the assessee not required to reverse the credit originally availed by them at the time of receipt of capital goods when the said capital goods were subsequently removed as old, damaged and un-serviceable capital goods. I find by amendment of the Rules, certain percentage of reduction was given. Thus, prima facie, in my view, it is required to examine as to whether the value declared by the applicant is within the limit of reduction as noted in the amendment of the Rules. 5. emsp In view of that, the applicant failed to make out a prima facie case for waiver of entire amount of duty and penalty. Accordingly, the applicant is directed to deposit a sum of Rs. 30,000/- (Rupees Thirty Thousand only) within six weeks. Upon deposit of the said amount, the pre-deposit of the balance amount of duty and penalty is waived till the disposal of the appeal. Compliance to be reported on 22-6-2009. (Order pronounced in open court on 15-5-2009)
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2009 (5) TMI 718
Finalization of Provisional assessment - adjustment of short payment against excess payment - removal of lead and zinc concentrates from the mining units to the smelting units and at the time of removal
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2009 (5) TMI 717
Stay/Dispensation of pre-deposit ... ... ... ... ..... red to make payment of duty consignment-wise from their PLA account till the short-paid duty was made good along with interest. Contrary to the provisions they paid duty of Rs. 3,54,252/- during the material period consignment-wise using Cenvat credit. 2. emsp After hearing both sides I find that the appellants have discharged their duty due from the Cenvat account and the said credit would be available to them once they make payment of equal amount from their PLA. As the statutory provisions allow an appellant also to make pre-deposit from the Cenvat account the application for waiver of pre-deposit of the adjudged dues is allowed and stay of recovery granted pending decision in the appeal. (Dictated and pronounced in open Court)
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2009 (5) TMI 716
Refund claim - Application against outstanding arrears - Held that: - It appears that the respondent is disputing appropriation of the refund amount against outstanding arrear and, therefore, Commissioner (Appeals) rightly observed that the assessee should be given opportunity to defend their case which is part of principles of nature justice - appeal dismissed - decided against Revenue.
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2009 (5) TMI 715
Export Oriented Unit, 100% EOU ... ... ... ... ..... es Ltd. v. CCE, Aurangabad reported in 2005 (188) E.L.T. 210 the matter was referred to Larger Bench and in the said decision of the Larger Bench both the issues were answered against the assessee while holding that in any case goods cleared by 100 EOU and sold in India with permission of Development Commissioner shall be made under proviso to Section 3(1) of Central Excise Act, 1944 and exemption Notification No. 125/84-C.E. shall not be applicable. 4. emsp In the case in hand, only distinguishing factor which is brought to our notice is that after the goods were removed, while the same were in transit, they were stolen. However, the same would not in any way change the situation as far as the liability to pay the duty is concerned, or mode of assessment in relation to the goods. Being so, the matter in hand is fully covered by the decision of the Larger Bench in Jaipur Golden Transport and therefore, the appeal is accordingly, liable to be dismissed and is hereby dismissed.
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