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Central Excise - Case Laws
Showing 1 to 20 of 166 Records
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2010 (10) TMI 1245
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... ... ..... R. Dave, JJ. ORDER Appeal dismissed.
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2010 (10) TMI 1159
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... ... ..... o the contract of sale between the seller (assessee) and the buyer, the burden is on the assessee who claims exclusion of such charges from assessable value, to prove that such charges were incurred by somebody else. In our view, this burden of proof is implied in the definition of transaction value. 10. Considering the undisputed facts of the case that the appellants had collected the amount over and above the invoice price on account of equalised freight, labour and painting charges and the same do not form part of the assessable value, we find no fault with the concurrent findings arrived at by the authorities below on analysis of the facts of the case disclosed from the materials on record. Applying the law laid down by the Larger Bench in Supreme Petrochem Ltd. in the facts of the case, it is difficult to accept the challenge to the impugned order by the appellants. 11. For the reasons stated above, the appeal is liable.to be dismissed and is hereby dismissed.
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2010 (10) TMI 1153
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... ... ..... , Nagpur v. Wainganga Sahkari S. Karkhana Ltd., reported in 2002 (142) E.L.T. 12 (S.C.), the appeal is dismissed with no order as to costs.
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2010 (10) TMI 1151
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... ... ..... vices are neither used in or in relation to the manufacture or clearance of final product nor can it be said, to be an activity relating to business? 3. By consent, the appeal is taken up for final hearing. Counsel on both the sides agree that the aforesaid question raised in this appeal is covered by the decision of this Court in the case of Central Excise Appeal No. 7 of 2010, the Commissioner of Central Excise, Nagpur v. M/s. Ultratech Cement Ltd., Awarpur and another delivered today i.e. 25-10-2010. 4. In that view of the matter, the question raised in the present appeal for the reasons stated in the afore-said order is answered in the affirmative i.e. in favour of the assessee and against the Revenue. In the event that the Cenvat credit on outdoor catering services is recovered from the workers/employees, it will be open to the Excise Authorities to initiate proceedings and pass appropriate orders in that behalf. With this direction, the appeal is disposed of.
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2010 (10) TMI 1145
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... ... ..... appeals. 3. Following the ratio of the above decision we uphold the impugned orders and dismiss the appeals of the NGO. 4. Now, we take up the appeal of the Revenue, where the Revenue only challenges the direction of the Commissioner (Appeals) for remand of the matter to the Assistant Commissioner to process the four refund claims of the NGO based on the documents to grant refund if otherwise found eligible. The challenge is on the ground that the Commissioner (Appeals) has no power to remand the case after amendment to Section 35A (3) of the Central Excise Act, 1944 as amended from 11.05.2001. 5. We find that there is no contest by the Revenue to the admissibility of the refund on merits. The Commissioner (Appeals) rightly directed the Assistant Commissioner to process the claims on the basis of the documents filed by the NGO and to grant refunds if found eligible. We, therefore, uphold the direction given by the Commissioner (Appeals) and dismiss the appeal of the Revenue.
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2010 (10) TMI 1142
CENVAT credit - capital goods - Plate/Plate Mill Plate, M.S. Angle/MST Angle, Angle, M.S. Beam, M.S. Channel, etc - Held that: - the Tribunal was correct in law in holding that the assessee was entitled to avail of Modvat credit in respect of the above subject items - appeal dismissed - decided against Revenue.
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2010 (10) TMI 1137
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... ... ..... notice. This observation is sufficient to send the matter back to ld. Adjudicating authority to come to a conclusion, whether he is able to find a case in favour of Revenue under Rule 15 (1) or Rule 15 (2) of the Cenvat Credit Rules 2004. When confusion persists the appellant’s prayer is that there is already a Division Bench decision in their favour in the case of Indian Oil Corporation Ltd. reported in 2006 (75) RLT 676 (Trib.). It would be proper to remit back the matter to resolve the issue properly arriving at a proper conclusion, as to which sub-rule is appropriate sub-rule for levy of penalty and whether the decision cited shall come to rescue of the appellant. 2. With the aforesaid scenario, the pre-deposit is dispensed and the matter is remanded to ld. Adjudicating Authority to grant fair opportunity of hearing and pass a reasoned and speaking order. 3. In the result, both Stay Application and appeal are disposed. Dictated & Pronounced in the open Court .
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2010 (10) TMI 1136
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... ... ..... emo. Despite such communication, the appellants have not removed the defect. It is noticed that this matter has come up for disposal many times and defect remained. It is to be noticed despite these being a specific direction of the Bench on 7-9-2010 to remove the defect, the same is not yet removed and nor any communication from the concerned Commissionerate. To my mind, the appellants are not serious in prosecuting this appeal as the defect is not removed diligently. In view of this, I dismiss the appeal as not maintainable. Cross-objection is also disposed of. 3. Before parting with the case, Registry is directed that copy of this order be sent to the Central Board of Excise and Customs, New Delhi, Chief Commissioner, Visakhapatnam, Office of the Chief Department Representative, New Delhi and office of the Jt. Chief Department Representative, Bangalore, to take up the issue in a correct perspective and avoid similar situations. (Pronounced and dictated in open Court)
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2010 (10) TMI 1135
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... ... ..... , this Tribunal has also allowed credit vide Order No. 101/09-SM, dated 6-1-2009 2009 (239) E.L.T. 174 (Tribunal) This Tribunal allowed Cenvat credit on welding electrodes used for repair and maintenance of plant and machinery as held by the Apex Court. In the case of Ambuja Cement and Alfred Herbert India Ltd. (supra), Cenvat credit on input used for maintenance of plant and machinery, credit was allowed to the assessee. The decision of the ‘Hon’ble President of this Tribunal in he case of Vikram Cement has been passed prior to the judgments of Ambuja Cement and Alfred Herbert India Ltd. 7. Accordingly following the judicial discipline, following decision in the case of Ambuja Cement and Alfred Herbert India, I hold that Cenvat credit is availed by the appellants on welding electrodes and other items used for repair and maintenance of plant and machinery. With these terms, by setting aside the impugned order, the appeal is allowed with consequential relief.
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2010 (10) TMI 1133
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... ... ..... 1944 ? o p /o p 2) Whether in the facts and circumstances of the case, CESTAT was right in holding that refund of unutilized credit of Additional duty of Excise (TTA) is admissible under Rule 5 of Cenvat Credit Rules, 2002, especially when such credit was not accumulated on account of export of finished goods/intermediate product as specified in Rule 5 of Cenvat Credit Rules, 2002, but such credit of Additional duty of excise (TTA) was accumulated on account of full exemption from payment of Additional duty of excise (TTA) on finished goods by virtue of Notification No.18/96-CE dated 23.7.1996 as amended ?” o p /o p 3) Shri Mokadam, learned Counsel for the revenue, fairly states that similar appeal filed by the revenue posing similar questions has been dismissed by this Court in the case of Commissioner of Central Excise, Thane-II vs. D.C. Polyester Pvt. Ltd. (2009 (242) ELT 348(Bom) . In this view of the matter, the appeal is dismissed. No order as to costs. o p /o p
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2010 (10) TMI 1122
Whether in view of the provision of Rule- 3(2) and 6(1) of the Cenvat Credit Rule, 2002, the credit taken and utilized earlier in the inputs material by the manufacturer should be reversed or not if the same is used for manufacture of non-excisable goods?
Held that:- Tribunal has taken the correct view in the matter by applying law laid down by the Apex Court in the case of Collector of Central Excise, Pune Vs. Dai Ichi Karkaria Ltd. [1999 (8) TMI 920 - SUPREME COURT OF INDIA], which has been consistently followed in all other judgments, where it was held that In determining the cost of an excisable product covered by the Modvat scheme under Section 4(1)(b) of the Act read with Rule 6 of the Valuation Rules the excise duty paid on raw material also covered by the Modvat scheme is not to be included.
Appeal dismissed - decided against Revenue.
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2010 (10) TMI 1061
Cash Refund - shifting of unit of assessee, where he was exempt from paying Central Excise - Held that:- The unit of the respondent-assessee originally located at Delhi has been shifted to Baddi where it is very much functioning. However, in that area, the assessee was exempt from paying central excise. In these circumstances, no useful purpose would have been served in crediting the amount in the CENVAT account - cash refund to be allowed.
Interest on delayed refund - Held that:- Interest definitely accrued to the respondent, as the refund was made belatedly under Section 11BB of CEA 1944, which stands attracted - interest allowed.
Appeal dismissed - decided against Revenue.
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2010 (10) TMI 1045
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... ... ..... on, appropriate is to extract sub-section (2) of Section 47 “On payment by the person, the sum of money or the value or both, as the case may be in accordance with the provisions of sub-section (1) of Section 47-A such person, if in custody shall be set at liberty, and all the property seized may be released and no proceedings shall be instituted or continued against such person in any Criminal Court. The acceptance of compensation shall be deemed to amount to an acquittal and in no case any further proceedings be taken against such person or property with reference to same act.” It is manifest from the provision aforementioned that the Commissioner has the power to ask for payment of the sum of money or the value or both. In the case on hand, for the reasons detailed in the impugned order, the Commissioner has allowed the release on payment of sum as also value and examining the order in the light of the statutory power, we find no cause to interfere. Dismissed.
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2010 (10) TMI 1037
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... ... ..... the ground that on the identical issue, Division Bench of the Tribunal has set aside the penalty?. 2. The department issued show cause notice dated 24-3-2004 proposing to disallow Cenvat credit availed by the assessee and also proposing to impose penalty. The Adjudicating Authority raised demand of duty and also imposed penalty. On appeal, the Tribunal upheld the demand of duty but set aside penalty noticing that the assessee had not intentionally evaded duty. The Tribunal followed earlier order in the case of the assessee in similar circumstances against which appeal of the Revenue being CEA No. 63 of 2009 was dismissed by this Court on April 30, 2010. 3. We have heard learned counsel for the appellant. 4. In view of the fact that appeal against identical order in the case of the assessee was dismissed by this Court, we are unable to hold that any substantial question of law arises for consideration of this Court. 5. Accordingly, the appeal is dismissed.
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2010 (10) TMI 1032
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... ... ..... y's case that the functioning of SFIS certificate is different than the functioning of DEPB scheme. In DEPB scheme, the exporters are issued DEPB which allow them specific amount to be utilized as customs duty, while the SFIS scheme, the service providers are issued SFIS certificate which allow them to import or procure indigenous goods without payment of duty by debiting the said script. This being the case, I find that the decision of the Hon'ble High Court of Madras having been utilised by the Hon'ble Supreme Court, the ratio would clearly apply in this case also. 5. In as much as the issue involved in the present appeal is identical to one decided by the Tribunal in the case of M/s Universal Power Transformer Pvt. Ltd., the ratio of the law declared in the said judgment would squarely apply. We see no reason to take a different view. Accordingly, the impugned order is set aside and appeal allowed with consequential relief. Stay Petition also gets disposed of.
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2010 (10) TMI 1031
SSI Exemption - appellants file declaration and sent under Postal Certificate to the concerned Assistant Commissioner - the decision in the case of SWIFT FINVEST PVT. LTD. Versus COMMISSIONER OF C. EX., JAIPUR-I [2010 (2) TMI 621 - CESTAT, NEW DELHI] contested, where it was held that compliance of condition cannot be by mere sending a declaration under Postal Certificate, but it need to be submitted to the concerned officers as he was empowered to call for further information or documents as may be necessary to get himself satisfied about the claim made by the manufacturer - Held that: - the decision in the above case upheld - appeal dismissed.
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2010 (10) TMI 1030
Benefit of N/N. 30/2004 - denial on the ground that the appellants were availing simultaneous benefit of two N/N. 29/2004 and N/N. 30/2004-CE - appellant took a stand that the credit availed in respect of inputs used in the manufacture of final product cleared under N/N. 30/2004 stands reversed by them and as such the same amounts to the fact as if no credit has been availed - Held that: - reliance was placed in the case of COMMISSIONER OF CENTRAL EXCISE Versus ASHIMA DYECOT LTD. [2008 (9) TMI 87 - HIGH COURT GUJARAT], where it was held that reversal of credit amounts to non-taking of credit on the inputs - reversal of credit even at the appeal stage has been held in accordance with law.
As regards quantum of reversal, the matter is remanded to Commissioner for fresh decision - appeal allowed by way of remand.
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2010 (10) TMI 1027
Interpretation of statute - Jurisdiction - Whether the Tribunal has the power to reduce mandatory penalty u/s 11AC of the CEA, 1944?? - Held that: - issue is no more res integra in view of the judgments of the Apex Court in the case of Union of India v. Dharmendra Textile Processors, [2008 (9) TMI 52 - SUPREME COURT]. In the said judgments the Hon'ble Supreme Court has held that while interpreting the provisions of law the Court only interprets and cannot legislate and further that where wordings of the Statute are unambiguous and do not lead to absurd and unreasonable results, they have to be given their full effect, without adding any foreign words to the same - question is answered in the negative i.e. in favour of the Revenue and against the Assessee holding that the Tribunal on its own cannot reduce mandatory penalty under section 11AC of the Act for want of power in that behalf.
Whether the respondents are entitled to the benefit of first and second provisos to section 11AC of the CEA, 1944? - Held that: - in order to avail the benefit of 25% penalty, the duty, interest and penalty are required to be paid within 30 days of communication of the order passed by the adjudicating authority. Further, the reading of proviso (4) would also support this interpretation because the said proviso stipulate that wherever duty amount is increased at any appellate stage, in that case in order to avail the benefit of 25% penalty, the assessee is required to pay differential amount within 30 days of the passing of the order by the appellate authority - the appellant did not comply with the requirements of the provisos to section 11AC of the Act since the appellant did not pay the amount of interest under section 11AC within a period of 30 days from the date of receipt of quantified demand. In view of this admitted position, it is not necessary to go into the details of payment made by the petitioner in respect of duty liability, interest and penalty - question is answered in favor of the Revenue and against the Assessee.
Appeal allowed - decided in favor of Revenue.
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2010 (10) TMI 1020
Valuation - physician samples cleared by the applicant - Revenue’s contention is that the value of the physician's samples are required to be adopted on the basis of pro-rata value of the routine packs of the medicines - Held that: - the issue on merits is no longer res-integra and stands settled against the appellant by the Larger Bench decision in the case of Cadila Pharmaceuticals Ltd. Vs. CCE Ahmedabad [2008 (9) TMI 98 - CESTAT AHEMDABAD], where it was held that the appropriate rule governing the valuation of physician’s samples would continue to be Rule 4.
Time limitation - Held that: - there was confusion in the field by various decisions of the Tribunal and ultimately the issue was settled by referring the same to the Larger Bench, the appellant cannot be held guilty of any suppression or misstatement with an intend to evade payment of duty - period of limitation invoked.
The condition of pre-deposit of the entire duty and penalty stands waived, praising the ground of limitation - the impugned order set aside and matter remanded to Commissioner (Appeals) for decision on merits without insisting on any pre-deposit - appeal allowed by way of remand.
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2010 (10) TMI 1019
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... ... ..... ard to non-compliance of the direction issued by the Tribunal for predeposit and the applicant-appellant’s failure to make the predeposit even within extended period. The order dated 15-9-2006 is with regard to dismissal of appeal before the Tribunal for non-compliance of the order of pre-deposit. None of these orders raises any substantial question of law. Even while disposing the Special Civil Application, this Court has observed that there are disputed questions of fact. Taking any view of the matter, we are not satisfied that any substantial question of law is arising out of the order of the Tribunal. We, therefore, dismiss Tax Appeal No. 1827 of 2010. 8. So far as Tax Appeal is dismissed there is no question of granting any stay and hence Civil Application No. 372 of 2010 is also rejected. 9. Accordingly, Civil Application No. 316 of 2010 for delay condonation is allowed and Tax Appeal No. 1827 of 2010 and Civil Application No. 372 of 2010 are dismissed.
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