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Central Excise - Case Laws
Showing 81 to 100 of 184 Records
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2009 (9) TMI 769
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... ... ..... hat the quantum of subsequent price escalation was known to the assessees at the time of removal and that the goods carried a higher value on the date of removal. He, therefore, prays that the decision of the Apex Court may not be applied to the facts of the present case. He also relies upon the decisions of the Apex Court in E.D. Sassoon and Co. Ltd. v. CTI - 1954 (26) ITR (SC) and CIT v. A. Gajapathy Naidu - 1964 (53) ITR 114 (SC) in this regard. He further submits that the issue of Revenue neutrality was not considered by the Apex Court and, therefore, prays for this reason also, the Apex Court judgment in SKF India Ltd. (supra) may not be held to be applicable. However, since the issue stands squarely sattled by the Apex Court decision and it is not open to the Tribunal to depart therefrom for any reason whatsoever, I respectfully follow the ratio of the Apex Court rsquo s decision, uphold the impugned orders and reject the appeals. (Dictated and pronounced in open court)
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2009 (9) TMI 768
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... ... ..... des. It has rightly been brought to my notice by the learned counsel for the appellants that on issue of show-cause notice M/s. Pure Industrial Gases filed an application before the Settlement Commission which vide its order dated 28-9-2007 granted immunity to them from payment of penalty under the Central Excise Act, considering the totality of the facts and circumstances of the case and also having regard to the fact that the question of brand name was not a settled matter during the time of dispute. In other words, it was accepted by the Settlement Commission that there was no intention on the part of M/s. Pure Industrial Gases to evade payment of duty. This being so, taking of credit of duty paid by M/s. Pure Industrial Gases cannot be objected to as M/s. Pure Industrial Gases cannot be said to be guilty of any suppression etc. so as to disallow credit to the assessee. I, therefore, set aside the impugned order and allow the appeal. (Dictated and pronounced in open court)
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2009 (9) TMI 766
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... ... ..... rmine the correct duty amount and pay the same before clearance. In the light of the cited order of the Hon rsquo ble Supreme Court, there was an obligation, on the appellantassessee to pay the entire amount of duty at the time of removal itself. Therefore, by paying the duty short, the appellants have contravened Rule 173F and consequently they are liable to penalty under Rule 173Q for removal of goods in contravention of Rules. We also note that the adjudicating Commissioner has correctly noted that under Rule 173Q(1)(a), intention to evade payment of duty is not an essential ingredient to invite penalty. Hence, we are of the view that in regard to the penalty of Rs. 50,000/- imposed by the adjudicating Commissioner, no intervention is called for. 4. In view of the foregoing, we uphold the impugned order and dismiss the appeal filed by the appellantassessee as well as the appeal filed by the department. (Operative part of the Order pronounced in the open Court on 24-9-2009)
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2009 (9) TMI 764
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... ... ..... or the last day of such month, as the case may be, he shall be liable to, (i) pay the outstanding amount of duty along with interest thereon at the rate of eighteen percent, per annum, calculated for the period from the 16th day of such month or the 1st day next month, as the case may be, till the date of actual payment of the outstanding amount, and (ii) a penalty equal to such outstanding amount of duty, or five thousand rupees, whichever is greater. rdquo We see merit in the assessee rsquo s contention that theirs is not a case of failure to pay whole of the amount payable for any month by 15th or the last day of the month for the reason that the demand was confirmed by disallowing abatement only in Feb rsquo 01. In other words, amount of duty payable was determined only by the Commissioner rsquo s order dated 28-2-2001. Hence we set aside levy of interest as well as the penalty, and allow the appeal. (Operative part of the order was pronounced in open court on 24-9-2009)
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2009 (9) TMI 763
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... ... ..... tances it has to have the necessary details relating to the retail packages contained in such wholesale packages and would require to have the retail sale price on each of the said packages. It is also pertinent to note that in terms of proviso to Rule 6 and in terms of Rule 34 of the said Rules there are specific provisions which would exempt, the requirement of such declaration of the price. There are specific exemptions thereunder. Obviously therefore the third proviso to the such explanation to the said notification would apply only to said exemption specifically provided under the said Rules and not to others. Being so, prima facie, there is no case made out for grant of waiver of entire amount directed to be paid under the impugned order. Hence, the application for stay is liable to be dismissed and is accordingly dismissed and amount shall be deposited in terms of the impugned order within a period of 8 weeks from today. 7. Matter to come up for compliance on 20-11-09.
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2009 (9) TMI 762
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... ... ..... 2007 dismissed the Department rsquo s appeal. It is against this order that the present appeal has been filed by the Department. 2. None appeared for the respondent. Heard Shri S.N. Srivastava, the learned Departmental Representative who reiterated the grounds of appeal. 3. I have carefully considered the submissions of the learned Departmental Representative and have perused the records. When the penalty has been imposed under Section 11AC, which prescribed penalty equal to the duty evaded, the penalty imposed under this Section could not be more than the Cenvat credit whose demand has been confirmed and when Section 11AC has been invoked, Rule 13 would not be applicable. In any case from reading of Rule 13 of the Cenvat Credit Rules, 2004, it is clear that what this Rule prescribes is an upper limit and not the minimum penalty. In view of this, I do not find any merit in the Revenue rsquo s appeal. Revenue rsquo s appeal is dismissed. (Dictated and pronounced in open court)
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2009 (9) TMI 761
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... ... ..... e order passed by the adjudicating authority. 11. The learned Jt. CDR has fairly submitted that there was no justification for the original authority to impose penalty in exercise of powers under Section 11AC as the said section was not in force during the relevant period. Indeed considering the period during which the product is said to have been clandestinely manufactured and removed, the provision of law comprised under Section 11AC were not in force and therefore, the adjudicating authority could not have imposed penalty under the said provision of law. Consequently, the penalty imposed under the said provision of law was rightly set aside by the Commissioner (Appeals). 12. For the reasons stated above, therefore the appeals partly succeed. The impugned order is hereby quashed and set aside and the order of the original authority is restored except in relation to the imposition of penalty under section 11AC of the said Act. The appeals are disposed of in the above terms.
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2009 (9) TMI 760
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... ... ..... 7. Even in the show-cause notice, there is no evidence that the shortage was arrived at by applying the tolerance as per IS standard. No doubt, the authorized signatory of the respondents submitted that the quantity of finished goods was entered into the statutory records by applying IS standard. In the circumstances, as there is no evidence on record to show that the shortage was arrived at as per IS standard. I find no merit in this contention of the Revenue. 8. In respect of the 3rd ground, I find that as the Commissioner (Appeals) in the impugned order held that the penalty imposed on Shri R.K. Gupta who was Director of the Company, is beyond the scope of the present proceeding meaning thereby the penalty imposed by the adjudicating authority is upheld. Hence, the Revenue cannot hold to be aggrieved against this order. In the circumstances, I find no infirmity in the impugned order. The appeal filed by the Revenue is dismissed. (Dictated and pronounced in the open Court)
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2009 (9) TMI 757
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... ... ..... hat this case relates to the period prior to 1-7-2000 and in respect of the said period, the Board vide Circular No. 681/72/2002-CX., dated 12-12-2002 has clarified in para-4 that such charges will not be included in the assessable value. In view of the above cited circular, we find no merit in the department rsquo s appeal and the same is dismissed. (Dictated and pronounced in open court)
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2009 (9) TMI 755
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... ... ..... ns rdquo . Only in such cases, the product gets excluded from the exemption mentioned above. Similarly, for the period 1-3-97 the tariff entry itself refers to ldquo products consisting of sheets of paper ............ compressed together in one or more operations. rdquo This condition has not been fulfilled. Therefore, we do not find any error in the order of the Commissioner (Appeals). The order is well reasoned and we are not been shown any valid ground to interfere with the same. 8. In view of the above, the appeal filed by the department is rejected. 9. At this stage, the learned advocate for the respondent submits that they have filed a cross objection which is merely in support of the order of the Commissioner (Appeals). The said cross objection has not been listed before us and is also not found in the records of the appeal. However, in the light of the decision taken, it will not make any difference and being so, the cross objection is deemed to have been disposed of.
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2009 (9) TMI 753
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... ... ..... utiable and dutiable inputs and finished products which have also been sent for test report we do not find any good ground to permit the Central Excise authorities to continue the detention of the inputs/raw materials. 2. The question of levy of duty or verification, if any, is still to be adjudicated upon by the Central Excise authorities. Under the garb of the detention order the authorities cannot be permitted to stop running of the business or manufacturing activities. 3. We, therefore, dispose of the writ petition with the direction to the respondents to permit the petitioner to utilise the detained inputs/raw materials upon furnishing security of rupees two lacs in the form of bank guarantee in favour of respondent no. 2. Upon furnishing the said bank guarantee, the order detaining the goods of the petitioner shall cease to have any effect. However, furnishing of the bank guarantee would be subject to the adjudication proceeding in which the petitioner shall cooperate.
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2009 (9) TMI 752
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... ... ..... the Commissioner (Appeals), Tiruchirappalli did not have jurisdiction on the dates he has decided these cases but they plead that an officer not having jurisdiction having decided these cases, now if it is sent back to another officer the respondents would be burdened with unnecessary cost. 2. After considering the submission of both sides, we find that the impugned orders have been passed by an officer who did not have jurisdiction to pass these orders. Hence these orders cannot be upheld. We set aside the same and remand the cases to the Commissioner of Central Excise (Appeals), Madurai to pass appropriate orders after giving an adequate opportunity of hearing to the respondents. Before parting with the cases, we express our unhappiness that officers at the level of Commissioner are deciding cases and passing orders which are not within their jurisdiction. 3. All the three appeals filed by the Department are allowed by way of remand. (Dictated and pronounced in open court)
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2009 (9) TMI 750
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... ... ..... scharge duty at the rates as applicable to the said goods if imported into India. However, Notification No. 22/2003 provides for concessional rate of duty subject to the conditions mentioned therein. In the present case, the submission made by the learned SDSR that in respect of cotton sliver, the condition for extending the benefit of DTA clearances has not been fulfilled appears acceptable. However, we are of the view that penalty may not be justified. 7. In view of the above, we hold that the applicant has not made out a case for waiver of duty demand but made out a case for waiver of penalty. 8. In view of the above, we direct the applicant to deposit the entire amount of duty within eight weeks from today and report compliance on 6-11-2009. Subject to deposit of the above amount, we waive pre-deposit of penalty and interest and stay recovery thereof till disposal of the appeal. 9. The views expressed are prima facie views for the purpose of disposal of the stay petition.
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2009 (9) TMI 718
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... ... ..... the product also answered to the description of the sub-serial No. 6 of serial No. 82 of Notification No. 6/2006. Prima facie, the product manufactured by the applicant can be considered as ldquo bagasse board rdquo and notwithstanding that the same may answer to the description contained in another Notification, we are of the view that the applicant is free to choose the Notification when more than one Notification is applicable. We also find that this view has been upheld by the Hon rsquo ble Supreme Court in Share Medical Care v. UOI reported in 2007 (209) E.L.T. 321 (S.C.) wherein it has been held that if the applicant is entitled for the benefit of two different Notifications, he can claim the Notification which is more beneficial to him. 3. In view of the above, we hold that the applicant is eligible for the benefit of Notification No. 6/2006. Accordingly, we waive the pre-deposit of dues as per the impugned order and stay recovery thereof, till disposal of the appeal.
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2009 (9) TMI 717
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... ... ..... the appellants by acceding to the request of the appellants which was made under letter dated 12-2-09. In the circumstances, as rightly pointed out by the learned advocate for the appellant there is clear violation of principles of natural justice by the adjudicating authority while disposing of the proceedings and imposing duty liability upon the appellants. 4. In the facts and circumstances, therefore, we are left with no alternative but to set aside the impugned order and direct the Commissioner to give hearing to the appellants in the matter and dispose of the proceedings afresh in accordance with the provisions of law. 5. At the request of the learned advocate for the appellants, four weeks time is granted to file reply to the show cause notice. Such reply should be filed on or before 5.10.09 without fail. The appellants shall ensure their co-operation to the concerned authorities for expeditious disposal of the matter. 6. The appeals are dispose of in the above matter.
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2009 (9) TMI 716
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... ... ..... nt, it stands observed by the Hon rsquo ble Supreme Court that mdash ldquo the consequence of the said judgment in Dharamendra Textile Processors is that the challenge to the vires of Rule 96ZQ(5)(ii) in the original writ petition before the High Courts stands revived. rdquo By observing so the Hon rsquo ble Supreme Court has remanded the matters to the respective High Courts for deciding the question of virus of the above sub rule. 3. As a consequence, the issue of imposition of penalty under Rule 96ZQ(5)(ii) is dependent upon the outcome of a writ petition pending before various High Courts on the vires of the said rule in question. We accordingly think it appropriate to remand the matter to the Original Adjudicating Authority for fresh decision after the declaration of law by the High Court on the vires of the above rule. The appeal is accordingly disposed off in above terms. The assessee would be at liberty to contest the case on merits. (Dictated and Pronounced in Court)
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2009 (9) TMI 715
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... ... ..... But I do not find any merit in their submission that they were not allowed to use full cenvat credit, and had to make arrangements from cash payment which took some time. Instances of assessee being requested to pay duty by using less cenvat credit may not be uncommon, but this can not be a defence. Anyway, even if they had a valid reason for not paying the duty by the due dates, they cannot escape the provisions of Rule 8(3A) as it is quite well settled that statutes have to be interpreted strictly rdquo . 4. In view of the above, we find that the assessee was having sufficient balance in cenvat credit and the delay in payment of Rs. 12 lakhs in cash may not justify demanding duty in cash for the period from 5-9-2007 to 5-10-2007. Therefore, we hold that the applicant has made out a prima-facie case for waiver of the dues as per the impugned order and accordingly we waive the pre-deposit of duty, interest and penalty and stay recovery thereof till the disposal of the appeal.
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2009 (9) TMI 714
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... ... ..... e 17A. She states that though this corrected certificate was produced before the lower appellate authority he has not taken the same into account and has passed the impugned order confirming the demand. 2. Heard the learned JDR Ms. Indira Sisupal, who reiterates the findings of the authorities below. 3. After hearing both sides, I find that the appellants have produced a corrected certificate which has been attested by the Bond Officer Shri V. Jeyabal Mariappan. Once the corrected certificate is taken into account, the basis of the impugned order goes. Accordingly, the impugned order is set aside and the appeal is allowed. The stay petition also stands disposed of. (Dictated and pronounced in open court)
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2009 (9) TMI 712
Clandestine removal - job-work - grey MMF classified under chapter heading Nos. 52, 54 and 55 and knitted or crocheted fabrics classified under chapter heading No. 60.01 under the cover of Annexure II - Held that: - there is no dispute about the fact that the appellant is a job worker, who did the processes on the goods received from the principal manufacturer. No duty liability can be fastened upon him even if the goods are not specified under N/N. 214/86-C.E. It stands concluded in the above judgments that the Provisions of Rule 57F(4) and Rule 4(5)(a) CCR are independent of the Notification - appeal allowed - decided in favor of appellant.
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2009 (9) TMI 711
Demand and penalty - Recovery from the Director - Personal liability - held that:- The settled position in law is that liability for duty of the company cannot be fastened upon the director of a company unless there is a statutory provision to that effect. Such an issue came up for consideration before this court in the matter of Sunil Parmeshwar Mittal v. Dy. (Recovery Cell), CE [2005 (8) TMI 116 - HIGH COURT OF BOMBAY], wherein the court took a view that liability of members is limited to the extent of face value of shares subscribed by each member and the amount remaining unpaid on them for time being, former director of the company cannot be held responsible for payment of liabilities of company in the absence of any specific provision. - We are of the opinion that duty demand of the company cannot be recovered from the director in the absence of statutory provisions in the Central Excise Act, 1944.
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