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Central Excise - Case Laws
Showing 21 to 40 of 184 Records
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2009 (9) TMI 865
Confiscation - the goods found unaccounted in the RG-1 of the respondent - Held that: - The allegation in the SCN that these goods were kept without entering in the records, with an intention to clear the same without payment of excise duty, is not supported by any evidence - the goods once they are in the factory premises, no penalty can be imposed on the respondent under the provisions of Rule 173Q.
The goods once they are in the factory premises, no penalty can be imposed on the respondent under the provisions of Rule 173Q - the goods which were found in excess in the factory premises are not liable for confiscation.
The respondents have not entered in the statutory records, which needs to be done by them as provided under the rules. This is a violation of the rules. For this kind of violation, penalty has been provided under Rule 226 of Central Excise Rules, 1944.
Appeal allowed - decided partly in favor of Revenue.
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2009 (9) TMI 864
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... ... ..... n the circumstances, the appellants has made a prima facie case to contend that there was no case for demand of 10 of the value in terms of the Rule 6(3)(b) of the Cenvat Credit Rules, 2004. Considering the facts that the appellants had been paying duty and only in that regard claiming the benefit of cenvat credit available in terms of the provisions of law in relation to the utilization for manufacture of final product, we do not find any prejudice to the interest of the Revenue if stay is granted in the matter hand. It is also to be noted that nearly after a gap of one year already the Revenue authority has explained that the process of lamination as well as metallisation amounts to manufacture and the Chapter note 16 of Chapter 39 is very clear in that regard. In the circumstances, prima facie case having been made out, the execution of the impugned order is stayed and the requirement of pre-deposit is waived till disposal of the appeal. The application stands disposed of.
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2009 (9) TMI 863
Benefit of N/N. 67/95-C.E. dated 16-3-95 - The appellants have paid 8% on the rectified spirit but since the period is prior to the amendment of the N/N. 67/95, the lower appellate authority has not allowed the benefit of Notification to the appellants - Held that: - only alcoholic liquor for home consumption is specifically excluded from the union list and hence it requires to be effectively verified that the undenatured ethyl alcohol (rectified spirit) cleared by the appellants without payment of duty is actually alcoholic liquor for home consumption. Subject to this aspect being verified, the appellants will be entitled to the exemption in respect of molasses under Notification No. 67/95 without being hit by the proviso thereon - appeal allowed by way of remand.
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2009 (9) TMI 861
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... ... ..... no merits in the above view of the Revenues. As already seen by the Commissioner (Appeals) that Revenue was in knowledge of the fact that the cans are going to be used for products which are exempted products and that was the objection raised by the audit when they directed the respondents to reverse the credit. Otherwise also we note that the respondent are working on job work basis under the cover of challans issued by the principal manufacturer and cannot be expected to know that the goods manufactured by them are going to be used by the principal manufacturer for dutiable or exempted products. There being no specific allegation made in the Revenue rsquo s appeal referring to any positive act of suppression or statement on the part of the respondent with an intent to evade payment of duty, we are of the view that benefit of limitation has been rightly extended by the Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is rejected. (Pronounced in the Court)
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2009 (9) TMI 860
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... ... ..... he provisions of law comprised under sub-rule (2) of Rule 6, then in such circumstances can he avail the benefits under sub-rule (3) of Rule 6 of the Cenvat Credit Rules. The point requires due consideration, more particularly in view of the decision of the Larger Bench in Nicholas Piramel (I) Ltd. v. CCE, Thane-I reported in 2008 (232) E.L.T. 37 (Tri-LB) . Being so, prima facie, a case has been made out for grant of stay of impugned order. At the same time considering the huge amount involved in the matter and in the interest of Revenue, it is necessary to dispose of the matter expeditiously. Therefore, while disposing of the stay petition, we direct the Registry to list the Appeal No. 1734/2009 for hearing on 1-12-09, high on board, along with appeal Nos. E/l809/05 and E/518/07. Registry shall also to ascertain whether there are more appeals pending on the similar issue and to list those appeals along with these appeals. 3. Stay application, accordingly, stands disposed of.
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2009 (9) TMI 856
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... ... ..... of balance in the PLA to another minor head whenever duty was withdrawn. It is the submitted that in a case, the Commissioner of Central Excise, Coimbatore allowed adjustment of duty paid under one head for short payment of duty under another head. After hearing both sides and perusing the records, we find that the appellants have made out prima facie case for waiver of pre-deposit of duty and interest demanded. Accordingly, the application for waiver of pre-deposit of the dues adjudged is allowed and recovery thereof stayed pending decision in the appeal. (Pronounced and dictated in the court)
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2009 (9) TMI 855
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... ... ..... tion in the rules and that if the capital goods are received and installed in the factory, the requirement of rules is satisfied. 3. After hearing both sides, we find that both the authorities have relied upon the report given by the jurisdictional range officer. A perusal of the said report indicates that the respondents are using the impugned computer system for purchases, stores, material planning etc., and also for drawing structures and designs etc. The report also indicates the use of the computers for production, planning, material receiving etc. As such, there seems to be no doubt that the impugned computer system is being used in connection with the production of finished goods. Therefore, we are of the view that the order passed by the lower appellate authority to grant benefit of Modvat credit in this case does not warrant any intervention. Consequently, the department rsquo s appeal is rejected. (Operative part of the Order pronounced in the open Court on 24-9-09)
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2009 (9) TMI 854
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... ... ..... of removal, duty equal to Cenvat credit is payable only if the Cenvat credit had been taken at the time of receipt. In this case, the goods have been subjected to process of repair only, which does not amount of manufacture. Since at the time of receipt of goods, no Cenvat credit has been taken, therefore, no duty was payable. Moreover, I find that each receipt of the goods during Sept. rsquo 01 to April rsquo 02 had been intimated to the Deptt. and hence Deptt. cannot be unaware to the fact for receipt of the goods for repairs. In view of this, the respondent cannot be accused of having suppressed any information with intent to evade the payment of duty and, hence, in any case, only the normal limitation period under Section 11A(1) was available to the Deptt. and as such the demand SCN dated 23-9-06 is time barred. 4. In view of the above discussion, I do not find any infirmity in the impugned order. The Revenue rsquo s appeal is dismissed. (Order dictated in the open Court)
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2009 (9) TMI 852
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... ... ..... ith their balance sheets or such reliable evidence as purchase orders, quantity of BOPP films lifted by the customers etc. Accounting of these receipts in the balance sheets could be reliable indication if the same was sales revenue or liquidated damages. Commissioner cannot demand duty on any amount as additional consideration without relating the same to clearances of particular excisable goods. Also demand has to be restricted to pro rata cost of the cylinder reckoned with reference to the total number of pieces that could be manufactured with each cylinder before it is worn out. We cannot hold that the longer period does not apply unless these amounts are established to be liquidated damages. The matter is accordingly remanded for a decision afresh by the original authority. Needless to say that VFP shall be afforded an effective opportunity to present their case before a fresh decision is taken. The appeal is thus allowed by remand. (Pronounced in the court on 23-9-2009)
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2009 (9) TMI 851
CENVAT Credit - capital goods - equipment for co-generation plant - credit for the period 10/2000 to 12/2002 - sugar mill had become functional on 21-1-04 - Held that:- The co-generation plant became operational ahead of the sugar mill and during the period 1/2003 to 20-1-04, entire power generated was supplied to APTRANSCO. However, as per the PPA, SSAPL were to supply mutually agreed quantities of power to APTRANSCO and consume 0.20 MW to 3.2 MW captively.
The assessee set out to set up the sugar factory with a captive co-generation plant and procured capital goods for the purpose and took credit of duty paid on them. The assessee cannot be denied credit on the ground that co-generation plant produced non-dutiable electricity and electricity was the final product at the time of receipt of equipment required to set up the power plant. On erection of the entire facility, dutiable excisable goods were the final products manufactured using, inter alia, electricity produced by the co-generation plant.
It is immaterial that owing to delay in receiving certain approvals required, the sugar mill became fully operational in January, 2004 whereas the co-generation plant was operational a year earlier.
The appellants eligible for the impugned credit - appeal allowed - decided in favor of appellant.
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2009 (9) TMI 850
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... ... ..... A services are pending adjudication. The ld. counsel has submitted that the amounts covered by these notices are part of the present demand in relation to GTA services. In this scenario, we are of the view that waiver and stay should be granted in respect of the demand of Rs. 59,97,695/- and it is ordered accordingly. 3. The third demand is of an amount of Rs. 12,44,967/-. Towards this demand, the assessee already paid Rs. 7,61,376/-. After considering the submissions of both sides, we have not found prima facie case against the above demand of Rs. 12,44,967/- and, therefore, the appellant should pre-deposit the balance to amount which is being rounded off, for the present purpose to Rs. 5 lakhs. This amount of Rs. 5 lakhs (Rupees Five lakhs) should be deposited within a period of 4 weeks. Report compliance on 12-10-09. In the event of due compliance, there will be waiver of pre-deposit and stay of recovery in respect of the balance of the adjudged dues. (Pronounced in court)
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2009 (9) TMI 849
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... ... ..... s in relation to the impugned order fixing liability to pay the duty upon them without analyzing the materials on records and without arriving at an appropriate conclusion based on proper and logical reasoning. On this ground itself without referring to all other grounds sought to be canvassed in the matter, the impugned order is liable to be set aside and matter remanded to the adjudicating authority to decide the same afresh in accordance with the provisions of law. 18. In the result, therefore, the appeals succeed, the impugned order is set aside and matter is remanded for fresh consideration thereof by the adjudicating authority and bearing in mind the observations made herein above. We make it clear that we have not expressed any opinion on the merits of the case. The adjudicating authority to dispose of the matter as expeditiously as possible after hearing both the parties and in any case prior to 31st March, 2010. 19. All the appeals are disposed of in the above terms.
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2009 (9) TMI 848
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... ... ..... n the Tribunal decision in the case of Gujarat State Fertilizers Co. v. CCE, Vadodara - 1996 (83) E.L.T. 599 (Tribunal), wherein demand raised after four years in terms of Rule 196 was held to be barred by limitation. Similarly, in the case of CCE, Kolkata v. Kwality Ice Cream Products Limited - 1998 (27) RLT 148 (CEGAT) 1998 (101) E.L.T. 166 (Tribunal), it was observed that reasonable time limit is to be read into the Rule 196. 4. Though the learned advocate has also relied upon another decisions in support of his submissions, we do not think it necessary to refer to the same as we are of the view that in the light of declaration of law by the Hon rsquo ble Allahabad High Court, as upheld by the Hon rsquo ble Supreme Court, the demand of duty raised beyond the period of five years, though in terms of Rule 196, cannot be prima-facie upheld. We accordingly, dispense with the condition of pre-deposit of same and allow the stay petition unconditionally. (Pronounced in the Court)
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2009 (9) TMI 847
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... ... ..... question in or in relation to the manufacture of the final product by the appellants and on the contrary, the appellants having established from the materials placed on record the utilization of such product in the process of manufacture of the final product for the relevant period, the contention about unauthorized availment of the credit cannot be accepted and for the same reason confirmation of the demand of duty also cannot be sustained. Being so, the impugned order in that regard is liable to be set aside. The invocation of the extended period in relation to the show cause notice dated 5-3-2002 also is not sustainable. Once the duty liability cannot be established, question of imposition of penalty does not arise. 16. For the reasons stated above, therefore, we do not find it necessary to refer to the decisions sought to be relied upon on behalf of the appellants. 17. In the result, therefore, the appeals succeed the impugned order is set aside with consequential relief.
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2009 (9) TMI 846
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... ... ..... ovision been available to the Hon rsquo ble High Court, its decision would have perhaps been different. 5. In the present scenario, however, we need not take into account the above amendment to the Notification. The Notification as it stood during the material period has been construed by the Hon rsquo ble High Court and the results are in favour of the assessee. On that basis, prima facie the assessee can claim the benefit of Sr. No. 10 of Notification No. 30/04 for the period of dispute. There is no stay of operation of the High Court rsquo s judgment. Therefore, there will be waiver of pre-deposit and stay of recovery in respect of the duty and penalty amounts in this case. Further, there will also be stay of recovery of fine. 6. The learned Counsel urged that the appeals be finally disposed of in view of the Hon rsquo ble High Court rsquo s judgment. Let us await the outcome of the proceedings before the Hon rsquo ble Supreme Court. (Dictated and pronounced in open Court)
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2009 (9) TMI 845
Valuation - dealer’s commission and delivery charges - includibility - Held that: - Rule 7 provides that “where the goods are not sold at the time and place of removal but are transferred to a depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold, the value shall be the normal transaction value of such “goods sold from such other place” - In the present case, Motor Spirit and HSD oil are also sold to customers at the time and place of removal. In these circumstances, provisions of Rule 7 are not attracted - In the present case, the assessees determined the value as per Rule 4 of the Valuation Rules which is therefore required to be accepted - appeal allowed - decided in favor of appellant.
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2009 (9) TMI 844
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... ... ..... amount of penalty also. 9. He further placed reliance on Asiatic Gases Ltd. v. CCE, Mumbai order No. A/154/2009/SMB dated 25-3-2009 and UOI v. Rajasthan Spinning and Weaving Mills, 2009 (238) E.L.T. 3 (S.C.) 2009-TIOL-63-SC-CX and CCE v. Monarch Pipes Ltd., 2009 (235) E.L.T. A87 (S.C.). 10. Heard. 11. On careful examination of the submissions made by both the parties and reliance placed before me, I am of the view that the appellant rsquo s case is squarely covered by the reliance placed by the ld. Advocate in the case of Bharat Heavy Electricals Ltd. (supra), Audco India Ltd. (supra) and Tecumseh Products India Pvt. Ltd. (supra) and the reliance placed by the ld. SDR in the case of Asiatic Gases Ltd (supra) is not applicable in this case. Notification No. 26/2007 (N.T.) dated 11-5-2007 does not have any retrospective effects as it was introduced on 11-5-2007. With these observations I set aside the impugned order and the appeal is allowed. (Pronounced in Court on 11-9-2009)
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2009 (9) TMI 843
SSI exemption - clubbing of clearances - clandestine removal - reliability on invoices - demand of duty with interest and penalty
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2009 (9) TMI 841
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... ... ..... proper to send the matter back to the learned Adjudicating Authority to keep on watch on the outcome of the proceeding before the learned Textile Tribunal and decide the issue as to whether the sum shall be payable to Excise Department with the consequence of law. We notice from Section 4 of the Central Excise Act, 1944 that tax if collected and actually paid shall only get immunity from being part of assessable value. If nothing is paid although collected depending on the Textile Tribunal rsquo s decision Section 4 may be invocable. 3. With the aforesaid observation and decision, we send the matter back to the learned Adjudicating Authority to pass appropriate order. (Dictated and pronounced in open court)
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2009 (9) TMI 840
Classification of goods - Whether the respondents are entitled for credit in terms of Rule 57Q or Rule 57A in relation to each of the items will have to be decided by the Commissioner (Appeals) - appeal allowed by way of remand.
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