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Central Excise - Case Laws
Showing 41 to 60 of 184 Records
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2009 (9) TMI 839
Cenvat credit of SAD discharged on imports using the DEPB credit - Held that: - The credit availed pertains to SAD levied in terms of sub-section (5) of Section 3 of the Customs Tariff Act. Therefore, as per the above provision in the Notification, the respondents cannot be denied the Cenvat credit equivalent to the DEPB credit debited towards SAD levied under sub-section (5) of Section 3 of the Customs Tariff Act - the provisions of the Notification and the clarification issued by the CBEC - appeal dismissed - decided against Revenue.
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2009 (9) TMI 838
Reversal of MODVAT/CENVAT credit - applicability of Rule 6(3) of CCR, 2002 - job worked goods being exempted from duty - Held that: - Once there is nexus of the job worked goods with the finished goods produced by the principal manufacturer, denial of CENVAT credit to the job worker for use of input in the intermediate goods exempt from duty in terms of the above Notification would be unjust if the principal manufacturer has not claimed CENVAT credit in respect of inputs of job worker used in the job worked goods of principal manufacturer.
However, it is required on the part of the learned Commissioner (Appeals) to conduct an enquiry and examine the record of the principal manufacturer M/s. DSM Anti-Infectives India Pvt. Ltd. and find out whether the job worked goods were properly accounted for at both the ends and whether such job worked goods had undergone the process of manufacture of final product and whether the final output has undergone suffering of excise duty and whether the principal manufacturer has claimed Cenvat credit on the inputs of job worker since job worker was exempt from payment of duty.
Appeal allowed by way of remand.
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2009 (9) TMI 837
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... ... ..... ble Supreme Court in the case of Nizam Sugar Factory (supra). The Hon rsquo ble Supreme Court in para 9 of the said decision held as follows - ldquo 9. Allegation of suppression of facts against the appellant cannot be sustained. When the first SCN was issued all the relevant facts were in the knowledge of the authorities. Later on, while issuing the second and third show cause notices the same/similar facts could not be taken as suppression of facts on the part of the assessee as these facts were already in the knowledge of the authorities. We agree with the view taken in the aforesaid judgments and respectfully following the same, hold that there was no suppression of facts on the part of the assessee/appellant. rdquo 5. In view of the above decision of the Hon rsquo ble Supreme Court, the impugned Order is set aside and the Appeal is allowed. The Appellant is entitled for the consequential benefit, if any, in accordance with law. (Pronounced and dictated in the open court)
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2009 (9) TMI 835
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... ... ..... rmining the eligibility of Cenvat credit on the capital goods. As already mentioned their intention that they were planning to avail benefit of Notification No. 29/04 is not relevant that they availed the benefit of Notification No. 29/04 subsequently is also not relevant. The fact that they had option to avail benefit under 30/04 or/and 29/04, for clearances effected during the month of March, 2005 is also not relevant. In view of the above, the appeal has no merits and, therefore, the demand of duty and interest is sustainable. 8. However, as regards the penalty, I find that the present case involves interpretation of certain provision of law and cannot be treated as a case involving misstatement, suppression of facts and therefore the imposition of penalty is not justified. 9. The appeal is rejected in so far as the same relates to demand of duty and order for recovery of interest. However, the appeal is partly allowed by setting aside the penalty imposed on the appellant.
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2009 (9) TMI 834
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... ... ..... s ruled that CAS-4 standard specified in Board rsquo s Circular dated 13-2-2003 can also be applied to the pending cases relating to the past period. However, he fairly agrees that while passing the impugned order the lower appellate authority did not have the benefit of hearing the Departmental representative. 4. After hearing both sides, we find that in view of the Hon rsquo ble Supreme Court rsquo s decision in the case of Cadbury India Ltd. (supra) there is no objection to adoption of CAS-4 standard for the period prior to the date of the issue of Circular dated 13-2-03. However, submissions made before the lower appellate authority require to be verified as the same were not made before the original authority. As such, we set aside the impugned order and remand the matter to the original authority for a fresh decision in accordance with the Board rsquo s Circular dated 13-2-03. The Departmental appeals are allowed by way of remand. (Dictated and pronounced in open Court)
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2009 (9) TMI 833
Time limitation - demand was raised u/r 12 of the CCR, 2002 read with Section 11AB of the CEA, 1944 - Held that: - Although Rule 12 and Section 11AB do not prescribe any period of limitation for issue of demand for recovery of interest, the very same issue stands settled in favor of the assessee by the Tribunal’s decision in Collector of Customs, Madras v. T.V.S. Whirlpool Ltd. [1996 (4) TMI 232 - CEGAT, MADRAS] holding that even when no time limit is prescribed for demand/recovery of interest under the CA, 1962, time limit of six months or five years as the case may be, as provided u/s 28 of the CA, 1962 is applicable to such cases.
The demand for recovery of interest is barred by limitation as it has been raised only in 2005 without any allegation that the assessees were guilty of fraud, suppression, mis-statement of facts etc. with intention to evade payment of duty.
Appeal allowed - decided in favor of appellant.
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2009 (9) TMI 832
Valuation - includibility - whether the Hydraulic testing, repair and maintenance charges of cylinders and rental charges of Chlorine tankers received from parties shall form part of the assessable value? - Held that: - testing, repair and maintenance is not a regular activity carried out prior to clearance. Once such peculiar fact surfaces, testing repair and maintenance charges shall not form part of assessable value of the chlorine cleared through cylinders - appeal dismissed - decided against Revenue.
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2009 (9) TMI 830
Equal amount of Penalty - Section 11AC of the Central Excise Act, 1944 - jurisdiction - power of Tribunal to reduce penalty
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2009 (9) TMI 826
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... ... ..... harged by the Revenue. The Tribunal referred to the judgment of the Hon rsquo ble Punjab and Haryana High Court in Punjab Rubber and Allied Industries. The appeal of the Revenue against the Tribunal rsquo s order in Asian Rubber and Plastic Industries was dismissed by the Apex Court as reported in 2001 (134) E.L.T. A246 (S.C.). In the present case, the department has not discharged the burden of establishing that goods in question are marketable. In fact the show-cause notice and adjudication order proceed on the basis that marketability is not required to be established for the reason that there is a specific tariff entry covering rubberized cotton fabrics. 6. In the absence of any material brought in by the Revenue to establish that the product is marketable, and in the light of the decisions cited supra, we uphold the impugned orders holding that the item is not excisable goods, and reject the appeals. (Operative part of the order was pronounced in open court on 30-9-2009)
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2009 (9) TMI 824
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... ... ..... s suppressed from the Revenue with any intention to evade duty. We also note that buyers of the yarn on the basis of the legal certificate issued by the Department cannot be expected to know as to whether 100 EOU is entitled to sell the goods in question in DTA or not. We also find force in the appellant rsquo s contention that the entire situation is Revenue neutral, inasmuch as the buyers/appellants have used the material in the manufacture of their final product, which stand exported by them and they were entitled to refund of any duty paid on the raw materials. The appellant rsquo s contention that no penalty can be imposed upon them, duly supported by precedent decisions, is also required to be accepted. 6. In view of the above, we set aside the penalties imposed upon all other appellants in terms of Rule 26/erstwhile Rule 209A. The appeals are, accordingly, allowed, except the appeal of M/s. I.C. Textiles, which stand dismissed for non-prosecution. (Pronounced in Court)
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2009 (9) TMI 823
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... ... ..... dered the submissions of the learned SDR and perused the records. It is not being disputed that M/s. A.B.S. Steel Pvt. Ltd. has taken the credit rightly but the stand of the Department is that the party has utilised excess credit and, as remedial action, the excess credit utilised is sought to be recovered. There is a clear contradiction. When M/s. A.B.S. Steel P. Ltd. admittedly utilised excess credit, it amounts to paying excess duty. That being the case, the question of demanding duty to the extent of excess duty paid by them, does not sound logical or legal. Therefore, the order of the Commissioner (Appeals) in setting aside the order of the original authority is reasonable and legal. No valid grounds adduced to interfere with the order of the Commissioner (Appeals). Therefore, the appeal by the Department is rejected. The cross objection by the party M/s. A.B.S. Steel (P) Ltd. is in support of the order Commissioner (Appeals) and accordingly the same is also disposed of.
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2009 (9) TMI 821
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... ... ..... sed, and not to levy such interest and penalty during the rehabilitation period. He also submits that the appellants were paying confirmed arrears in instalments in terms of the said order. We have also heard ld. SDR. 2. We find that in terms of the rehabilitation scheme ordered by the BIFR, payment of interest and penalties by the appellant has been waived by the Department. Considering the financial hardship of the appellant and the rehabilitation order of the BIFR, we order waiver of penalty of Rs. 30 lakhs and stay recovery thereof pending decision in the appeal. (Pronounced and dictated in open Court)
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2009 (9) TMI 820
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... ... ..... vailing exemption under the said notification. 2. We have heard both sides. 3. We find that the appellants are engaged in manufacture and export of coffee. It is not in dispute that the appellants require refrigeration facilities in manufacturing the export product. We find that the lower authorities have denied the exemption in terms of Notification No. 22/2003-C.E., dated 31-3-2002 for the reason that these items are not specified in the notification. We find that there is no dispute that the impugned goods are capital goods and are required in the production of export goods. We find that the notification in question extends benefit to an E.O.U. in respect of goods required for manufacture of export goods. We find that the appellants have made out a strong prima facie case against the demand of duty, interest and penalty. Therefore we order full waiver of pre-deposit of the dues and stay recovery thereof pending disposal of the appeal. (Pronounced and dictated in the court)
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2009 (9) TMI 819
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... ... ..... s has to be the contract value and the labour charges has been mentioned in the contract. Ld. Counsel would submit that by application of the Rule 11 of the Central Excise Valuation Rules, 2000, the value has to be considered in accordance with the Central Excise Valuation Rules and if that is to be considered, by application of Rule 4, the transaction value of the goods supply will apply, which is the value of the identical goods cleared to other customers. We find that if these are two separate contracts for supply and labour charges, value of labour charges may not form assessable value of goods, even in transaction value regime. Accordingly, we are of the considered view that the applicant has made out a prima facie case for the waiver of the condition of pre-deposit of amounts involved. Condition for pre-deposit of the amounts confirmed by the adjudicating authority is waived and recovery thereof stayed till disposal of the appeal. (Pronounced and dictated in open Court)
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2009 (9) TMI 818
Power of Commissioner (Appeals) to remand a case - Amendment of Section 35A(3) of the CEA, 1944 - Held that: - the Hon’ble Gujarat High Court in the case of Commissioner of Central Excise, Ahmedabad-I v. Medico Labs [2004 (9) TMI 108 - HIGH COURT OF GUJARAT AT AHMEDABAD] that even after the amendment to the statutory provision noted above, the Commissioner (Appeals) continues to have the power to remand the case - appeal dismissed - decided against Revenue.
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2009 (9) TMI 816
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... ... ..... d. This view is followed by this Bench in the case of CCE, Kolkata-III v. Panihati Castings Pvt. Ltd. reported in 2009 (239) E.L.T. 57 (Tri.-Kolkata) 2008 (10) LCX 295 and other cases. Further, I find that the Hon rsquo ble Supreme Court in the case of Union of India v. Umesh Dhaimode reported in 1998 (98) E.L.T. 584 (S.C.) 1997 (2) LCX 211, held that the Appellate Authority has powers to pass such order as it deemed fit confirming, modifying or annulling the decision appealed against. An order of remand necessarily annuls the decision which is under appeal before the Appellate Authority. Even by virtue of the amended Section 35A of the Central Excise Act, a power has been conferred on the Commissioner (Appeals) to pass such order as it deemed fit confirming, modifying or annulling the decision appealed against. In view of the above decision of the Hon rsquo ble Supreme Court, I find no merit in the appeal and the same is dismissed. (Pronounced and dictated in the open Court)
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2009 (9) TMI 814
Penalty u/r 209A of the erstwhile Central Excise Rules, 1944 and Rule 26 of Central Excise Rules, 2001 - Held that: - the appellant was not only engaged in issuing cenvatable invoices without any physical movement of the goods in the name of his firms but also he was settling the accounts of other registered dealers/washer manufacturing units, who had supplied invoices to M/s. Asian Alloys Ltd. without any physical movement of the goods - the goods supplied by the registered dealers and washer manufacturing units were diverted, which are liable to confiscation - penalty u/r 26 of the Rules is justified - we reduce the penalty from ₹ 50,00,000/- to ₹ 10,00,000/- - decided partly in favor of appellant.
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2009 (9) TMI 810
SSI exemption - denial of exemption on the ground that the scheme of amalgamation was subject to approval by the Hon’ble High Court and other statutory authorities - Held that: - the scheme of amalgamation was sanctioned by the High Court only on 28-7-2000, and the Registrar of Companies has allowed the amalgamation with effect from 16-5-2001 - the appellants have availed the small scale exemption only upto 23-9-2000 and thereafter, they have paid the normal duly - the appellants cannot be denied SSI exemption for the limited period they have actually availed the same till 23-9-2000 - appeal allowed - decided in favor of appellant.
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2009 (9) TMI 807
Valuation - It was alleged that the appellants have suppressed the value of product on the invoice at the time of clearance and have recovered the additional amount at later date by way of Commercial Invoice in Form R-1 Series - a demand of ₹ 9,62,033/- was confirmed u/s 11A of CEA, 1944 read with Rule 14 of CCR, 2004 along with interest and equivalent amount of penalty u/s 11AC of CEA, 1944 read with Rule 15 of CCR, 2004 - Held that: - the appellants has recovered the total amount against the EOT Cranes was ₹ 10,58,23,702/- and the appellant is liable to reverse the Cenvat credit @ 10% of the total sale proceeds i.e. ₹ 10,58,23,702/- received from the Customers.
Further, the demand which has been raised earlier, it cannot be presumed that the department would be aware that in subsequent period also the appellants would be recovering additional amount by separate commercial invoice of the different series. It is clear from the records that if the appellants did not want to suppress the facts, there was no reason to recover the said amount by a separate commercial invoice of a different series rather than the invoice under which the goods were purportedly sold. So, the appellants are liable to pay duty on the amount recovered subsequently through commercial invoices.
Appeal dismissed - decided against appellant.
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2009 (9) TMI 805
... ...
... ... ..... correct. 3. I have carefully considered the submissions of the learned Departmental Representative and have perused the records. 3.1 On going through the facts narrated in the order-in-original as well as in order-in-appeal of the Commissioner (Appeals), I find that goods under seizure were ungraded which were yet to be graded after being checked and the removal of the defective portions. It is only after checking and removal of defective portion that the fabrics are finally graded as ldquo fresh rdquo , lsquo A rsquo grade, lsquo B rsquo grade fabrics and Fents, rags and chindies. Since, the fabrics can be sold only after the same have been graded and the stage at which the fabrics had been seized, the same were yet to be graded, I am of the view that at this stage, the same were not required to be entered in the RG-1 register. In view of this, I do not find any infirmity in the impugned order. The Revenue rsquo s appeal is dismissed. (Dictated and pronounced in open court)
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