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Central Excise - Case Laws
Showing 121 to 140 of 166 Records
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2010 (10) TMI 270 - CESTAT, NEW DELHI
Cenvat credit - Course of investigation - Demand along with penalties - There is no allegation against the appellants that the capital goods in question which were procured against the said invoices were not available in the factory of the appellants - The department has not corroborated with any evidence from where these capital goods were procured, if they are not procured against the impugned invoices - The only allegation is that the supplier has done some ‘ghapla’ of central excise duty - Thus, if at all any demand is to be made that is to be against the supplier - Hence, the duty demand and penalties are not sustainable - Decided in favour of assessee.
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2010 (10) TMI 269 - CESTAT, NEW DELHI
Exemption Notification - Defence supply - Goods manufactured use by Defence Department - Notification No. 62/95-C.E., dated 16-3-95 is to be strictly observed in view of cumulative conditions required to be fulfilled - The conditions of notification clearly say that the goods of the description under Sri. No. 16 falling under any of the classes mentioned in column No. 2 of the notification should be necessarily manufactured by a factory belonging to the Central Government - - An interpretation clearly establishes spirit of the notification to serve public interest it seeks to achieve - Therefore, in total disagreement with the contention of the assessee claiming relief under this notification for the reason that the manufacture of the impugned goods was not done by a factory belonging to the Central Government - Once the first condition itself is not fulfilled there is no necessity to look into the other two conditions which depend on the condition - Since all the three conditions are cumulative in nature, benefit of exemption not available to assessee. the learned Commissioner (Appeals) had properly adjudicated the matter there is no scope to grant any relief to the assessee on merit. Learned Counsel at the end relied upon the provisions of Cenvat credit Rules, 2002 - According to him Rule 6(2) recognizes defence supply, for which the appellants should not be denied any relief - If the submission of the learned Counsel is accepted, then the purpose of notification shall be defeated - Therefore, disagree with the his contention - Consequently, the appeals fail.
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2010 (10) TMI 264 - HIGH COURT BOMBAY
Waiver of pre-deposit - Civil application - Modification of the order - The voluntary statement made by the Senior Vice President of the appellant Company, who was present in the Court - The order was passed by the Court that the appellant will deposit rupees two crores with the Department - The appellant seeks modification of the order inter alia on the ground that the financial position of the appellant is precarious and all the assets including plant and machinery and building have been taken over by the Asset Reconstruction Company (India) Ltd. Held that: all facts were within the knowledge of the Senior Vice President, when he made the statement before this Court that appellant would deposit rupees two crores within six weeks - Hence, the civil application is totally misconceived and the same is rejected.
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2010 (10) TMI 259 - CESTAT, AHMEDABAD
Duty liability - Manufacturer - M/s. Leuva Engineers is purchasing liquid metal on payment of duty from M/s. Kothi Steel Ltd., who were issuing excise invoice for the same. M/s. Leuva Engineers were purchasing other materials like sand, sodium silicate, mould boxes etc. from the open market. It was alleged by the Revenue that they themselves were carrying certain activities for the manufacture of unfinished steel castings in the premises of M/s. Kothi Steel Ltd. and after manufacture, the same were removed from the premises of M/s. Kothi Steel Ltd. to other premises for completing the process of grinding and finishing of the same. - Held that: - The Revenue’s allegations are neither clear nor proper. It stands rightly observed by Commissioner (Appeals) that even according to the Revenue’s allegations, the duty liability cannot be fastened on M/s. Kothi Steel Ltd. in as much as the goods allegedly stand manufactured by M/s. Leuva Engineers. - Revenue's appeal dismissed.
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2010 (10) TMI 250 - CESTAT, NEW DELHI
Cenvat credit - Penalty - none of the parties could bring to notice of the Bench about pendency of Revenue’s appeal when the matter was disposed on 15-12-2008 - It is high time for Registry to exercise proper control for listing of the appeal of both sides so that there shall not be conflict in the decision while appeal of one side is taken up, depriving the other side to pursue its remedy - It is needless to mention that the High Courts have already repeatedly reminded that appeals cannot be disposed in peace-meal - Registry should not lose sight of clubbing of the appeals through effective control measure, so that there shall not be repetitive observations, like this, in future - Decided in the favour of the assessee
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2010 (10) TMI 249 - CESTAT, NEW DELHI
Whether the respondent is entitled for interest beyond three months of the date of application of refund or not - As per Customs Refund Application (Form) Regulations, 1995, the assessee has to file refund claim as prescribed under these regulations and on receipt of this application, the proper officer has to scrutinise the same and within 10 working days of the receipt, if it is found that there is some deficiency in the refund claim, the same is to be returned within 10 days to the assessee - as per the provisions of section 11BB of the Act, the respondents is entitled to claim the interest beyond the period of three months of the date of filing of application for refund claim till the refund claim is realised as held by the lower appellate authority - Accordingly decided in the favour of the assessee
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2010 (10) TMI 235 - CESTAT, KOLKATA
Waiver of predeposit - The applicants on receipt of orders send the drawings to different manufacturers for making the patterns and the same are supplied to different foundries for manufacture of cast articles - The cast articles are cleared to their customers after undertaking some process in their premises such as surface clearing - The articles received in their factory were cleared by different foundries under the same chapter heading under which now the Revenue is asking for duty in respect of same articles - It is not the case of the Revenue that the applicants transferred the cast articles to identifiable parts - Prima facie, find merit in the contentions of the applicants. Held that: the predeposit of duty & penalties is waived and recovery of the same is stayed during pendency of the appeal - The stay petition is allowed.
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2010 (10) TMI 230 - CESTAT, BANGALORE
Classification - Parboiling machinery, drier plant and rice mill in conjunction form the paddy processing - Chapter Note 2, the parboiling machine merit classification under heading 8419 but as per Section Note 3 and 4, the machinery merit classification under heading 8437 - taking into consideration the Board’s Circular which is binding on the department, the appellants are justified in contending that the product in question is classifiable under CETH 8437 - Appeal, accordingly stands disposed off by way of remand
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2010 (10) TMI 224 - CESTAT, AHMEDABAD
Cenvat credit – Transfer of credit – One unit closed down and all inputs and capital goods shifted to factory of other unit – An unutilized cenvat credit to the extent of Rs. 9,74,895/-was available with M/s. Disha Industries. The same was transferred by them to M/s. Sheil Industries on the ground that as both the units are proprietary units with a common proprietor. - Held that:- Merely because both are proprietary units with one common proprietor cannot be held to be the reason for considering both the units as one and the same. If that was the case, there was no need for the proprietor to float two different units under two different names - As the provisions of Rule 10 do not apply to the facts of the case in as much as it cannot be held that M/s. Disha Industries has shifted its factory to another site and there being no other provision for transfer of unutilized cenvat credit, such transfer was in contravention of the provisions of law. - Demand confirmed - penalty waived.
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2010 (10) TMI 220 - ALLAHABAD HIGH COURT
Cenvat credit – Declaration - Under Rule 57G of the Rules, declaration regarding inputs as well as the final product is required to be indicated - there was neither any change in the inputs nor in the final product – No necessity for filing fresh declaration - Decided in favor of assessee
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2010 (10) TMI 218 - CESTAT, AHMEDABAD
Penalty on director - settlement of dispute of main noticee by Settlement Commission - cases against all co-noticees as regards imposition of penalty would come to an end - penalty stand imposed on the main noticee, stand waived by Settlement Commission - Whether the penalty stand imposed on the main noticee, who had approached Settlement Commission or the same stand waived by Settlement Commission, cannot be made the criteria for deciding the legal proposition i.e. as to whether the co-noticees would still be open to imposition of penalty when the case of main noticee stand settled before Settlement Commission. Further, the fact that Settlement Commission has observed that their order is only in respect of main noticee, cannot disturb the legal position settled by catena of judgments referred – Appeal allowed - decided in favor of appellant.
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2010 (10) TMI 210 - CESTAT, NEW DELHI
Penalty - show cause notice issued stated that the appellants had utilized cenvat credit, towards the payment of duty, but such credit had been accumulated during the period subsequent to the period for which amount of duty was sought to be paid - neither of the authorities below have arrived at any finding regarding the factual aspect of the said allegation against the appellants - Materials on record do not appear to have been analysed to ascertain the veracity of the said allegation. Being so and in the absence of any adverse finding to the appellants, certainly lower appellate authority was not justified in imposing the penalty.
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2010 (10) TMI 206 - PUNJAB AND HARYANA HIGH COURT
Modvat credit - Appellant submitted that bill of entry was assessed on the basis of invoice value and not on the basis of weight - Discrepancy in the invoice of foreign supplier and in the bill of entry about the weight was on account of an obvious clerical error and had no bearing on the Modvat credit taken on the basis of duty actually paid - This aspect was not appreciated by the Adjudica-ting Authority - Thus, substantial question of law as to perversity of finding recorded by the authorities arises and has to be answered in favour of appellant - Remand the matter to the Adjudicating Authority for a fresh decision
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2010 (10) TMI 204 - CESTAT, AHMEDABAD
Appeal to Tribunal – Maintainability - Revenue filed appeal against orders of Commissioner (Appeals) in EA-3 form - there is no review by the Committee of Commissioners, inasmuch though subsequently Committee was constituted, but not with retrospective effect. - appeals having been rejected by the Tribunal vide its earlier order, the Revenue could not have filed fresh appeal in respect of same impugned order - No liberty was given to the Revenue to do so in the earlier order of the Tribunal - appeals cannot be entertained as same amount to review of the earlier order of the Tribunal and sitting in appeal over the same, which is not permissible – appeal rejected
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2010 (10) TMI 203 - CESTAT, AHMEDABAD
Clandestine removal – clearance of plastic granules in guise of lay flat tubings – appellants also have produced three purchase orders and corresponding invoices which show that Eastern Group Companies had ordered for lay flat tubing, contrary to the claim of the department and the response of the appellant was to supply lay flat tubing only. Therefore the benefit of doubt has to be extended to RIP Demand based on statement - cash sales - the confirmation of demand would amount to discarding of a portion of the statement of the various persons and in the absence of cross-examination of Shri Lalit Agarwal and in view of the fact that only one invoice has been admitted and no other invoices have been investigated as regards existing customers - this demand cannot be sustained. Removal on parallel challans - there is a clear admission of the offence by Shri Hetal Patel and Shri D.P. Vyas duly accepted and endorsed by the partner. Further the transporter has not retracted his statement till date. Further parallel challan book was recovered. Under these circumstances it has to be held that department has been able to make out a case of removal without proper documents. - demand sustained. Cum Duty Price - It is an accepted principle that when a transaction value is available, we need not require a Chartered Accountant to certify that the price charged includes all the elements. Only in the case of refund claim, assessee is required to show that the duty liability has not been passed on. This is not a case of claiming refund. In any case in the absence of any evidence of collection of extra amount and also in view of the fact that the department’s demand of duty is based on the very same invoice and the correctness thereof, the same invoices cannot be ignored for the purpose of treating it as cum duty price. Extended period of limitation - extended period would be invocable in this case in view of the fact that parallel challans were maintained, plastic granules were cleared in the guise of lay fiat tubings, non-existent vehicles numbers were shown in the documents, payments were received in cash and details of buyers were suppressed. Therefore the submission that extended period could not have been invoked is not acceptable. Therefore penalty under Section 11AC equal to duty is imposable.
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2010 (10) TMI 191 - CHHATTISGARH HIGH COURT
Cenvat Credit – denial of credit – Assessee did not submit the invoices along with their monthly return and details of the goods received and sold were not entered in RG 23D Register - Tribunal has held that there is no dispute regarding duty payment and use of goods in manufacture of final product and the credit has been denied only on the ground that necessary particulars were not mentioned in the invoices and the supplier, which issued those invoices, did not enter the particulars in their statutory records - appeal allowed in view of the amendment made in Rule 57G and the Board’s Circular, which was issued in light of the amended rules - substantial questions of law in favour of the assessee and against the Revenue - Appeal dismissed
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2010 (10) TMI 190 - GUJARAT HIGH COURT
Refund of cenvat credit - interest on delayed refund - under provisions of clause (c) of the proviso to sub-section (2) of Section 11B and Section 11BB of the Act - interest on delayed refund Allowed. When Section 11BB of the Act had newly been inserted by the Finance Act, 1995, the Government of India, Ministry of Finance (Department of Revenue) has issued Circular : 130/41/95-CX., dated 30th May, 1995 - as per the instructions issued by the Central Government refunds under Rule 57F of the erstwhile Central Excise Rules, 1944 would be governed by the provisions of Section 11BB of the Act. Rule 57F of the said Rules made provision for the manner of utilisation of inputs and credit allowed in respect of duty paid thereon. Sub-rule (13) of rule 57F made provision for refund of accumulated credit in case where for any reason it was not possible to adjust the same in the manner provided under the said sub-rule. Sub-rule (13) of Rule 57F of the said Rules is more or less in pari materia to the provisions of Rule 5 of the Cenvat Credit Rules, 2002/2004. Thus, the instructions issued by the Central Government under the aforesaid Circular would also be applicable to refunds under rule 5 of the Rules, which instructions are binding on the revenue.
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2010 (10) TMI 188 - CESTAT, MUMBAI
Nutrition supplement – Classification - sample which was composed of proteinous matter, fatty matter, together with smaller amounts of mixture of various vitamins, flavouring agent and sweetening agent could rightly be classified under Heading 21.08 as food supplement - appellant just contended that Heading 21.08 was a residuary entry covering goods not specified or included whereas Heading 19.01 is a specific heading read with Explanatory Notes - classification of the goods under Heading SH 2108.99, sustained
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2010 (10) TMI 187 - CESTAT, AHMEDABAD
Stay order – pre-deposit of duty and penalty - application for vacating the stay – interpretation of the stay order by the Superintendent in the above letter, written to the Assistant Commissioner and the averments made by the appellants that they are being harassed for recovery of interest amount, on the ground that interest does not stand specifically mentioned in the stay order, only reflects upon his knowledge of law. When the principle amount i.e. duty itself stands dispensed with by the Tribunal, it is not understood as to how the Revenue can recover the interest amount. We also note from the said application that the stay order passed by the Tribunal was extended from time to time till disposal of the appeals. Such an extension order was last passed on 14-6-2010. As such, no merits are found in the Revenue’s prayer for vacation of stay order.
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2010 (10) TMI 186 - BOMBAY HIGH COURT
Order – Non-reasoned order – arbitrary order – It is, no doubt, true that there is no precise statutory or other definition of the term “arbitrary”. Arbitrariness in making an order by the authority manifest itself in different forms. Non-application of mind by the authority making an order is only one of them. Every order passed by the judicial or quasi-judicial authority must disclose due and proper application of mind by the person making order. This may be evident from the order itself or the record contemporaneously maintained by the authority. Application of mind is best demonstrated by disclosure of its mind by the authority making the order. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained, is clearly suggestive of the order being arbitrary and in breach of the principles of natural justice hence illegal and unsustainable. - order set aside – Matter remanded
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