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Central Excise - Case Laws
Showing 61 to 80 of 184 Records
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2009 (9) TMI 803
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... ... ..... data regarding their production during the years 1998-99 and 1999-2000. This is not a valid reason for rejecting payment of duty on actual production as there is no dispute about the fact that during these periods, the appellants were discharging duty liability on actual production basis and were submitting monthly RT 12 returns to the Jurisdictional Range Office and the Department can very well access the data regarding production from the Range Office. In view of this, the impugned order is set aside and the matter is remanded to the Commissioner for de novo adjudication after obtaining the data regarding production during the years 1998-99 and 1999-2000 and there after decide the appellant rsquo s request for moving out of the Compounded Levy Scheme on merit. Since the matter is very old, the Commissioner is directed to complete the adjudication proceedings within a period of 3 (three) months from the date of issue of this order. (Dictated and Pronounced in the open Court)
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2009 (9) TMI 801
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... ... ..... the respondents, they have paid appropriate tax on the same. As such, additional demand of duty imposed by the department on one ground or the other is not justified, in the absence of any allegation of manipulation etc. Accordingly, we are of the view that the impugned order passed by the lower appellate authority calls for no interference. Both the appeals filed by the department are dismissed and the cross objections filed by the respondents also gets disposed of. (Order pronounced and dictated in the open Court)
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2009 (9) TMI 800
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... ... ..... been submitted on behalf of the Department to counter the findings of the Commissioner (Appeals) that the respondents have collected any amount as excise duty. As such, we find that the finding of lower appellate authority that Section 11D cannot be applied in such cases does not require any interference. Hence the Department rsquo s appeal is dismissed. (Dictated and pronounced in open court)
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2009 (9) TMI 799
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... ... ..... s. 3. After hearing both sides, we find that the liability to pay duty is on the job worker who is the manufacturer of the impugned goods. It is well settled that valuation in such a case has to be done on the basis of the material cost plus processing charges. Instead of the job worker paying duty, in this case, the appellants have paid the duty on the impugned goods on behalf of the job worker. That does not warrant that the basis of valuation should be changed. In any case, for any short levy as alleged, the notice should have been issued to the job worker which has not been done. 4. As such, we find no merit in the department rsquo s appeal and dismiss the same. (Order dictated and pronounced in open Court)
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2009 (9) TMI 798
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... ... ..... ty cleared to the Grid and to the Township for purposes other than manufacture of dutiable goods within the factory. It has been claimed that proportionate credit on inputs was reversed but there is no quantification of such reversal of the credit in the appeal memoranda. We are told that several inputs were used in or in relation to the manufacture of electricity. These inputs were mentioned in the show-cause notices. In the absence of documentary evidence of quantified reversal of input duty credit, we are of the view that the appellant should reverse the credit taken on the aforesaid input proportionate to the electricity manufactured out of the same and diverted out of the factory for supply to MSEB Grid, Township etc. This reversal should be done to the satisfaction of the Commissioner within a period of 4 weeks. Subject to this condition, there will be waiver of pre-deposit and stay of recovery in respect of the amounts demanded under Rule 6(3)(b). (Pronounced in court)
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2009 (9) TMI 797
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... ... ..... t in respect of the amount reversed/paid in the first unit. 4. After hearing both sides, we find that there is no allegation of fraud, misrepresentation, suppression etc. Therefore, the appellants can be extended the benefit of doubt that they were not aware of the exact procedure to be followed. Besides, in view of the fact that the credit taken in respect of the removal of spare parts from the first unit has been made good, the appellants shall be allowed to take the credit in respect of the same spare parts which have been transferred from the first unit to the second unit. We order accordingly, set aside the impugned order and allow the appeal with consequential relief. (Order dictated and pronounced in open Court)
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2009 (9) TMI 795
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... ... ..... ier payment by debit in RG-23C Part II is also to be treated as payment under protest as seen from their letter received on 1-2-1999 is not tenable for the reason that the payment by debit in RG 23-A Part II on 29-1-1999 is the payment under protest. The argument of adjustment is also not tenable as the issue in the present appeal is whether the claim for refund filed in August, 2004 is barred by limitation or not. Since the claim for duty paid by wrong debit in RG-23C Part II in 1998 and 1999 was filed only in 2004, the claim has rightly been held to be hit by time-bar. In this view of the matter, I uphold the impugned order and reject the appeal. (Dictated and pronounced in open Court)
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2009 (9) TMI 791
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... ... ..... dvocate as accounted in the balance sheet, may also be an indicator of unsubstantiated higher shrinkage. When the company is not in a position to explain the huge shortage of raw materials, there is bound to be heavy losses. Having cleared the raw materials procured duty free, under bond, they are under obligations to account for the shortage. Their failure leads to consequences in terms of the bond. In view of the above, we hold that the applicant has not made out a case for full waiver of the dues as per the impugned order on merits, on limitation and on financial hardship. 8. Therefore, we direct the applicant to deposit a sum of Rs. 5 crores withion 12 weeks from today and to report compliance on 11-12-2009. Subject to the deposit of the above amount as directed we waive the balance amount of duty, interest and penalty and stay recovery thereof till disposal of the appeal. 9. The views expressed above are prima-facie views for the purpose of disposal of the stay petition.
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2009 (9) TMI 789
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... ... ..... ble Supreme Court as regards imposition of penalty under Section 11AC. This is a case of detection of excess stock of finished goods vis-a-vis recorded balance in RG-1 found during the visit of the Central Excise officers and also detection of excess raw material when compared with the balance recorded in RG-23A Part I register. Since in both these cases, excesses were found, it was not a case of short levy or non-levy but a case of confiscation of the goods since the goods would have to suffer duty after release of payment of fine etc. The question of penalty under Section 11AC does not arise. Hon rsquo ble High Court has directed this Tribunal to consider imposition of penalty in the light of the decision of Hon rsquo ble Supreme Court in the case of M/s. Dharamendra Textile Processors and since it is found that the same is not applicable to the facts of the case, no penalty under Section 11AC of CEA, 1944 can be imposed on the appellants. (Pronounced in Court on 23-9-2009)
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2009 (9) TMI 788
CENVAT credit - welding electrodes - whether welding electrodes used for repair and maintenance of plant and machinery are eligible for Cenvat credit as capital goods? - Held that: - the welding electrodes are covered by the definition of capital goods - appeal allowed - decided in favor of appellant.
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2009 (9) TMI 786
Condonation of delay - delay 8½ months in filing the application for ROM - Held that: - this Tribunal is creature of statute, more specifically as provided under Section 129 of the CA, 1962. The powers vested in the Tribunal for the purpose of deciding the appeals filed before us are drawn from the said Section 129 of the CA, 1962. The provisions of CEA, 1944, more specifically the provisions of Section 35C(2) of the CEA has to be applied in this case - There is no explanation for the delay in filing the application for rectification of mistake on 10-12-2008, when revenue themselves have sanctioned the refund claims to the assessee on 11-2-2008 in Appeal No. E/161/2007.
It is true that the period of limitation specified in terms of Sub-section (2) of Section 129(B) of the CA is required to be observed but the Tribunal failed to notice that it has inherent power of recalling its own order if sufficient cause is shown therefore. The principles of natural justice, which in a case of this nature, in our opinion, envisage that a mistake committed by the Tribunal in not noticing the facts involved in the appeal which would attract the ancillary and/or incidental power of the Tribunal necessary to discharge its functions effectively for the purpose of doing justice between the parties, were required to be complied with.
The proviso 35C(2) do not empower us for condoning the delay in filing the application for rectification of mistake filed belatedly.
Delay not condoned - COD application dismissed - decided against appellant.
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2009 (9) TMI 784
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... ... ..... ing interest on the delayed refund from the date of the filing of the refund claim. We find this proposition of law is directly contradicting the law as settled by the Larger Bench of the Hon rsquo ble Tribunal in the case of Rama Vision Limited v. CCE, Meerut - 2004 (170) E.L.T. 13 (Tri.-LB) and Jayantha Glass Ltd. v. CCE, Kolkata - 2004 (165) E.L.T. 516 (Tri.-LB). 7. Accordingly, we find that the learned Commissioner (Appeals) has come to a correct conclusion that the appellant is eligible for interest on the delayed refund after the expiry of three months from the date of the refund application filed by them before the lower authorities. In view of this, we do not find any infirmity in the order passed by the learned Commissioner (Appeals). The said impugned order is upheld to the extent the assessee has filed an appeal against the same and reject the appeal filed by the appellant-assessee. (Operative portion of the Order pronounced in open Court on conclusion of hearing)
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2009 (9) TMI 783
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... ... ..... ng to the value of the goods and nature of contravention is adequate. As regards the quantum of penalty, I do not agree with the plea of the Revenue as from the words - ldquo penalty not exceeding the duty on the excisable goods in respect of which any contravention of the nature referred to in clause (a), clause (b) or clause (c) or clause (d) has been committed, or Rs. 10,000/- whichever is greater rdquo in Rule 25(1) it is clear that what is prescribed is an upper limit of penalty, not the minimum penalty, if the duty involved is more than Rs. 10,000/- the upper limit would be the duty involved and if the duty involved is less than Rs. 10,000/-, the upper limit would be Rs. 10,000/-. Within the upper limit, the Adjudicating Authority has discretion to determine the quantum of penalty looking to the gravity of the offence. 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 the open court)
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2009 (9) TMI 782
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... ... ..... the assessee is that penalty under Rule 209A cannot be sustained in the absence of any finding that assessee physically handled the goods. However, I reject this plea as not tenable for the reason that such plea was not raised in the earlier round of litigation before the Tribunal and the Tribunal has remanded the issue of re-computation of amount of duty and the issue of commensurate penalty and therefore what the assessee is seeking to do now is to challenge the order of the co-ordinate Bench which is not permissible. 3. In the light of the above, I uphold the impugned order and reject the appeal. (Dictated and pronounced in open court)
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2009 (9) TMI 781
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... ... ..... nths from the date of passing of the adjudication order expired. In view of this, I do not accept the appellant rsquo s plea that the provisions of Section 11AA are not applicable to Modvat credit demand. The Hon rsquo ble Supreme Court rsquo s order cited by the ld. Counsel for the appellant is not applicable to the facts of this case. 5. As regards the appellant s plea that the interest would be chargeable only on the part of the demand which was paid in cash and not on the demand which was paid to Cenvat credit, I do not find any merit in this plea, as there is no such provision in section 11AA or in Rule 57-I(3). Interest is chargeable on the amount of confirmed Modvat credit which was not paid and since the entire demand remained unpaid till the same was paid in April and May, 2004, the interest would be chargeable on the entire amount. In view of this, I do not find any infirmity in the impugned order. The appeal is dismissed. (Dictated and pronounced in the open Court)
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2009 (9) TMI 778
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... ... ..... n Bench of the Tribunal in the case of Vikram Cement v. CCE, Indore 2009 (242) E.L.T. 545 (Tri. - Del.) has held that welding electrodes are not eligible for Cenvat credit as inputs, in that judgment the eligibility of welding electrodes for Cenvat credit as capital goods has not been considered and thus on the question of eligibility of welding electrodes for Cenvat credit as capital goods, the only judgment which holds the fields is Hon rsquo ble Rajasthan High Court rsquo s judgment in the case of Hindustan Zinc Ltd. v. UOI (supra). Since on the question of eligibility of welding electrodes for Cenvat credit as capital goods, the judgment of Hon rsquo ble Rajasthan High Court is against the Revenue, in my view this is not a case of imposition of penalty. Therefore, I do not find any infirmity in the impugned order. The Revenue rsquo s appeal is dismissed. The Cross Objection filed by the respondent also stands disposed of as stated above. (Order dictated in the open Court)
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2009 (9) TMI 777
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... ... ..... uo appreciation in rupee value. rdquo Another document submitted by the counsel is the audited ldquo financial results rdquo for the year ended 31-3-2009, which shows that they have incurred a loss of Rs. 55.24 crores as on 31-3-2009. The learned counsel is not certain as to whether this loss is also due to ldquo appreciation in rupee value rdquo . We are dealing with this case in September, 2009. The documents produced by the party do not disclose the latest financial situation of the company. However, we are inclined to give some credence to the plea of financial hardships. In the result, we direct the appellant to pre-deposit an amount of Rs. 3 (Three) crores towards demand of nearly Rs. 12 crores under Section 35F of the Central Excise Act within a period of 8 weeks and report compliance on 9-11-2009. In the event of due compliance, there will be waiver of pre-deposit and stay of recovery in respect of the penalty amount and the balance amount of duty. (Dictated in Court)
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2009 (9) TMI 776
Principles of Natural Justice - copies of the relied-upon and unrelied-upon documents seized from the premises of the Respondents were not returned to the assessees
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2009 (9) TMI 772
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... ... ..... ed it was observed that the applicant appeared to be merely interested in delaying the matter. In these circumstances, the application for adjournment having been rejected, the main ground disclosed in the application is apparently afterthought. Having noted as above, the fact remains that it was essentially on account of non-availability of the advocate that the matter was dismissed. 5. It has been the consistent view of the Courts and Tribunals that any failure on the part of the advocate, the party should not be made to suffer. Bearing the same in mind and in the interest of justice, we recall our order dated 22-4-09 and restore the rectification application No. 55/09 in Appeal No. E/3040/09. The stay application is directed to be listed for hearing on 20-11-09. Learned Advocate appearing for the applicant and learned DR for the respondent has taken note of next date of hearing in the said matter and no further notice is required to be issued in that regard to the parties.
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2009 (9) TMI 771
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... ... ..... and has therefore held that the assessees need not file an application for refund under the provisions of Section 11B of the Act and hence the doctrine of unjust enrichment does not arise in their case. He has rejected the contention of the department that the burden of proving that the incidence of duty has not been passed on to their buyers rests squarely on the shoulders of the assessee. The lower appellate authority has therefore flouted the directions of the Tribunal contained in the order dated 18-8-2004 and has not implemented the same. We, therefore, set aside the impugned order and once against remit the case to the Commissioner (Appeals) for recording a clear finding as to whether the assessees have unjustly enriched themselves. He shall pass fresh orders after granting them a reasonable opportunity to be heard in their defence. 3. The appeal is thus allowed by way of remand. (Operative portion of the order was pronounced in open court on completion of the hearing)
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