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Central Excise - Case Laws
Showing 21 to 40 of 166 Records
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2010 (10) TMI 1011
Refund claim - N/N. 41/2007-ST dated 06.10.2007 - N/N. 03/2008-ST dated 19.02.2008 - N/N. 17/2008-ST dated 01.04.2008 - rejection on the ground for non-compliance of the provisions of aforesaid notifications and under the provisions of Section 11 B of the CEA, 1944 - Held that: - the time limit for claiming refund stands extended from 60 days to six months from the end of the quarter. The Board in his Circular No.112/06/2009-ST dated 12.3.2009 has clarified that the refund of service tax in respect of goods exported during the quarter March to June 2008 could be filed till 31 December 2008, if the refund is otherwise admissible - refund cannot be denied on ground of limitation - matter remanded to Commissioner (Appeals) for adjudging the admissibility of the refund claim on merits - appeal partly allowed and part matter on remand.
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2010 (10) TMI 1009
Rectification of mistake - sub-section (1) of Section 35C - Held that: - the mistake apparent from records can be rectified only in respect of an order under Section 35C(1) which is the final order disposing of the appeal - the order which is sought to be rectified is not the order u/s 35C(1), but the stay order passed u/s 35F. In view of this, the provisions of Section 35C(2) cannot be invoked for rectification of stay order passed u/s 35F - ROM application dismissed.
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2010 (10) TMI 1008
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... ... ..... Mere sending of raw material and getting the goods manufactured from the manufacturer on job work basis, would not convert the raw material supplier into manufacturer, so as to pay duty of Excise. This is exactly what Revenue has done in the present case. The appellants have admittedly discharged their duty liability on the goods manufactured in their unit located at Silvasa, if any. There is no dispute about their entitlement of small scale exemption in respect of goods manufactured at Silvasa. The tanks manufactured by job workers cannot be, by any stretch of imagination, be included in the clearance value of the tanks by the appellant at their Silvasa unit. 7. We further note that mere affixing of brand name in the godown by using stencil, cannot be considered to be a manufacturing activity. 8. As such, we find no reason to confirm the demand of duty or to impose penalty on the appellant. Their appeal is, accordingly, allowed. (Pronounced in Court on 8-10-2010)
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2010 (10) TMI 1007
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... ... ..... credit available to SCL is 75 of the total duty paid only. Rule 57AC(2)(c) provides that an assessee can take credit not exceeding 50 in the first year and the balance in subsequent years. The total credit available would be the one which is applicable on the date of receipt which is 75 . I am not in a position to exactly specify as to the amount of credit admissible to SCL in the year 2001-2002 since the amount of credit admissible in the first year is again subject to the interpretation of the decision of the Hon’ble Supreme Court by the lower authorities. Therefore the issue is decided by holding that the total credit admissible is 75 and the credit admissible for 2001-2002 would be the balance available after deducting the credit taken in the first year. The matter is remanded to the original adjudicating authority to decide the correct amount admissible as credit and also decide on any other issue involved, if any, in this case. (Pronounced in Court on 8-10-2010)
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2010 (10) TMI 1005
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... ... ..... he payment of excess duty by the appellants. The reliance placed by the learned Advocate are not relevant to the facts of this case as in the case of Indo Rama Synthetics (India) Ltd. cited supra, the High Court of Delhi has dealt the case of Customs wherein as per provisions of Section 154 of the Customs Act, 1962 which deals with mistake or error by the importer or Central Excise officers whereas in the case of Indian Oil Corpn. cited supra, the facts were that credit of excess duty was taken by the appellants in their personal ledger account which was asked by the Assistant Commissioner to file a refund application for duty already paid. Hence, the above said decisions are having no relevance with the facts of this case. As the lower authorities has rightly held that refund claim has been filed beyond the statutory period of one year, as per Section 11B of the Central Excise Act, the appeal deserves no merits. Impugned order is upheld. Accordingly, the appeal is rejected.
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2010 (10) TMI 1004
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... ... ..... t the rate of goods indicated on it. In the show cause notice, it is not alleged against the appellants that they have not received the goods against those invoices. Infact these invoices were supported with the fact that the goods were received by them with transporters invoices also. And it has been admitted by the suppliers namely, SMW/FE that they have supplied the goods to the appellants along with the duty paid invoices. In that situation, I hold that the appellants have taken proper care while receiving the goods in their factory to avail the credit correctly by mentioning the documents which were given to them at the time of receipt of the goods. In that circumstances, no fraud, collusion etc. can be levied by the department and hence penalty on the appellants is not imposable in this case. Accordingly, the impugned orders confirming the penalty on the appellants are set aside. 9. With these observations, appeals are allowed by setting aside the impugned orders.
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2010 (10) TMI 1003
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... ... ..... ssification of a product has to be done by the jurisdictional officer-in-charge of the manufacturing unit. The officer-in-charge of recipient unit cannot be allowed to sit in judgment over the classification already determined by the officer-in-charge of manufacturing unit. The decisions relied on by the learned SDR in the case of Methodex Systems Ltd. and other cases relate to classification of goods like filing cabinet manufactured by respective parties. Without going into the merits of the classification of the impugned mobile storage system, we have no doubt that the officer-in-charge of the appellant’s unit has no jurisdiction to re-determine or re-open the classification approved by the officer-in-charge of the supplying unit. 8. In view of the above, we have no hesitation in setting aside the orders of the Commissioner (Appeals) and that of the original authority and therefore, we allow the appeal with consequential relief, as per law. (Pronounced in Court)
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2010 (10) TMI 1002
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... ... ..... ajhans Metals Pvt. Ltd., we are of the view that penalty cannot be imposed upon the appellant.” 5. By adopting the ratio of the above decision, we hold that the extended period of limitation was not available to the Revenue. In fact we find that number of assessees having installed wind mills at a far off place from the factory, have availed the input credit in respect of the services availed at the site of the wind mill, inasmuch as number of such appeals are being entertained by this Bench. This only reflects upon the bona fides of the assessees as regards availment of credit and cannot be attributed to any suppression on their part. 6. Having held that the demand is barred by limitation and as such is not liable to be confirmed, I find no reasons to impose any penalty on M/s. Leamak Healthcare Pvt. Ltd. and on B.R. Patel. The same is also set aside. 7. In view of the above, both the appeals are allowed on the point of limitation. (Pronounced in Court)
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2010 (10) TMI 999
Refund claim - denial on the ground that the credit of specified duty can only be allowed in respect of inputs used in the final products cleared for export under Bond - Whether the deemed credit amount taken by the appellant in their Cenvat credit account register during March, 2007 i.e. after the deemed credit scheme is rescinded vide N/N. 8/2003-C.E. (N.T.), dated 1-3-2003? - Whether the deemed credit amount shall lapse after the scheme rescinded? - Held that: - The appellant is entitled to transfer the deemed credit balance into Cenvat credit account on denial of refund claim which was paid in cash. As such the impugned order is maintainable - credit available on inputs used in the manufacture of the final product is the credit of duty paid on such inputs. However the government from time to time, keeping in view the difficulties faced by the industry as regards production of documents, allow such credit on the basis of deeming provisions, as if the duty stands paid on the inputs so utilized - appeal rejected - decided against Revenue.
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2010 (10) TMI 997
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... ... ..... cision was clarified. The decision in BHEL case was given per incuriam as it did not take into account the Apex Court’s judgment in International Auto Ltd.’s case and also did not at all consider the relevant statutory provision viz. Section 4(3)(d) of the Central Excise Act. 7. What binds us in these cases is the decision of the Hon’ble Supreme Court which held in SKF case (involving similar facts) that the payment of differential duty by the assessee was covered by sub-section (2B) of Section 11A and, therefore, interest was leviable thereon under Section 11AB. This legal position was reaffirmed by the apex court in International Auto case. 8. In the result, the impugned orders demanding interest from the appellants under Section 11AB on the differential amounts of duty paid by them under sub-section (2B) of Section 11A of the Central Excise Act have to be sustained. It is ordered accordingly. All the appeals are dismissed. (Pronounced in Court)
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2010 (10) TMI 996
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... ... ..... e same aspect being related to the quantification of duty, the matter could not have been decided prior to the receipt of the report of the Development Commissioner. It is undisputed fact that the order of the Tribunal was subjected to appeal review by approaching the High Court, the said order was not interfered with by the High Court. In the circumstances, as rightly pointed out on behalf of the appellants, the adjudicating authority could not have proceeded to decide the quantification and confirmation of duty liability and penalty. Considering the same, therefore, prima facie case has been made out for stay of the impugned order in relation to the demand made under the impugned order. Needless to say that all the findings herein above are prima facie findings. 15. In the result, the applications are allowed as far as the impugned order relates to the confirmation of duty demand and penalty are concerned till disposal of the appeals without insisting for pre-deposit.
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2010 (10) TMI 994
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... ... ..... February 2004 & March 2004 during the audit which took place during the September & October 2004, the demand of the amount of reversal of Cenvat credit by show-cause notice dated 25-9-2007 is belatedly time barred is correct and merits all due consideration. If the Revenue’s audit department, that too headed by an officer of the rank of Commissioner, accepts the correctness of availment of Cenvat credit paid on the items, i.e. ‘pre-fabricated (construction) building (cold room)’ consisting of wall, roof, door, flashing window, etc., there can be no justification for invoking extended period of limitation. In view of this, I hold that the impugned order is liable to be set aside and is set aside and the appeal of the assessee is allowed. Since the appeal is disposed of on the issue of limitation, I am not recording any finding on merits of the case. The impugned order is set aside and the appeal is allowed. (Pronounced and dictated in the open court)
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2010 (10) TMI 993
CENVAT credit - It was alleged against the appellant that they are not entitled to avail cenvat credit on finished goods - Held that: - The Board’s Circular No. 283/117/96-CX., dated 31-12-1996 has clarified that if the inputs are exported as such on that also the cenvat credit is available to the assessee - the appellant has taken cenvat credit on the finished goods when they were brought top their factory but instead of any process they exported the same on payments of duty as such. From the clarification of the Board and as per Rule 16 of CER, 2002, the appellant is entitled to Cenvat credit on the same - appeal allowed - decided in favor of appellant.
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2010 (10) TMI 992
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... ... ..... led in April 2004 to February 2006, is clearly barred by limitation. The appellant had entered the rejected and returned final product into their account in the statutory record and have availed the Cenvat credit duly reflected in the records which were part of return filed for the month of November 2004. In fact, Show Cause Notice stand issued on the ground that scrutiny of ER-I return for the month November 2004 revealed that noticee had availed credit on the basis of invalid documents. As such, the proceedings were initiated against the appellant on the basis of ER-I return filed for the month of November 2004. In such a scenario, no suppression or mis-statement can be attributed to the appellant with an intent to evade payment of duty. The notice having been raised beyond the normal period of limitation has to be held as barred by limitation. 6. In view of the above, I set aside the impugned order and allow the appeal with consequential relief. (Pronounced in Court)
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2010 (10) TMI 991
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... ... ..... s immaterial whether the warranty was optional or mandatory. Since the value could be different for different transactions, wherever warranty charges are paid or payable to the assessee, in those transactions warranty charges shall form part of the assessable value. 5. We find that the additional amount collected towards international warranty for sale of the assessee’s machines from its overseas customers is part of warranty collected by reason of sale or in connection with sale of the goods manufactured by the assessee. Therefore, prima facie, these warranty charges form part of the assessable value. Duty confirmed appears payable by FIPL. Accordingly we order that the appellant shall pay the duty demanded within four weeks and report compliance to the Assistant Registrar on 22-11-2010. On such pre-deposit there shall be waiver of pre-deposit of balance dues and stay of recovery thereof pending decision in the appeal. (Pronounced in the open court on 20-10-2010)
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2010 (10) TMI 989
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... ... ..... o discussion or any evidence as regards the involvement of the Director. The penalty stands imposed upon him for the contravention committed by the manufacturing unit. The Commissioner (Appeals) while upholding the order of the Assistant Commissioner in respect of the manufacturing unit, has set aside the penalty on the Director by following the Tribunal’s decision in the case of Jayakrishna Aluminium Ltd. v. C.C.E., Chennai reported in 2005 (187) E.L.T. 234 (Tri.) by observing that once the penalty stands imposed on the company, there was no justification for imposition of very penalty on the Director. 4. As already observed, the penalty on the Director stand imposed by the original adjudicating authority in a mechanical manner without attributing any role to him in clandestine clearance of the goods. In such a scenario, setting aside of penalty on the Director by Commissioner (Appeals) would be justified. Accordingly, the appeal filed by the Revenue is rejected.
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2010 (10) TMI 987
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... ... ..... herson Sumi Systems Ltd. v. C.C.E., Meerut - 2002 (147) E.L.T. 1121 that the value of materials supplied free is required to be included in the assessable value of goods produced with the free supply materials. Further, the assessees have accepted their liability and have paid the amount arrived at by including the value of free supply materials in the assessable value of goods manufactured by them. Therefore, we agree with the Revenue that the decision of the Apex Court in International Auto Ltd. v. C.C.E., Bihar - 2005 (183) E.L.T. 239 (S.C.) relied upon by the respondents is distinguishable on facts as seen from paras 6 and 7 of the Apex Court’s decision. We, therefore, agree with the learned SDR that penalty under Rule 173Q is imposable on the respondents. We, therefore, partly allow the appeal by upholding the penalty under Rule 173Q of the Central Excise Rules while upholding the setting aside of penalty under Section 11AC. (Dictated and pronounced in open court)
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2010 (10) TMI 986
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... ... ..... these rules with intent to evade payment of duty, On perusal of the Rule 25, subject to provisions of Section 11AC of the Act, it means that ingredients of Section 11AC of the Central Excise Act, are necessary to confiscate the goods to penalise the assessee to invoke Rule 25. The decision of the Larger Bench is of no support to the learned DR as after the Larger Bench, the Hon’ble Punjab & Haryana High Court have dealt with the issue and I am bound by the judicial discipline to follow the decision of the higher forum. Accordingly, following the decision of Hon’ble High Court of Punjab and Haryana in the case of Sadashiv Ispat Ltd. (supra), wherein it was held that to invoke the provisions of Rule 25(a), (b) and (c) ibid, mens rea is required. In this case, in the absence of mens rea, the provisions of Rule 25 ibid are not invocable. Accordingly, I set aside the impugned order and allow the appeal with consequential relief. (Pronounced in Court on 6-10-2010)
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2010 (10) TMI 984
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... ... ..... an export, and, therefore, such goods are not subjected to actual payment of duty and are cleared under bond. As the law stands today the goods which are cleared for export under bond are not considered to be exempted goods. The goods which are chargeable to nil rate of duty are also not considered as exempted goods. Therefore, the appellants have made out a prima facie case for grant of stay of the impugned order. 5. The DR has drawn our attention to the decision of the Tribunal in the matter of Associated Cement Co. Ltd. v. Commissioner of C. Ex., Chandigarh reported in 2006 (206) E.L.T. 329 (Tri.-Del.), thereunder the final product was specifically exempted under Notification No. 50/2003-C.E. That is not the case in the matter in hand. Therefore, the said decision is of no help to the respondent. Hence the application is allowed, the amount demanded under the impugned order is waived till the disposal of the appeal. 6. Application stands disposed of accordingly.
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2010 (10) TMI 982
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... ... ..... arwal Pain which is referred to in the said certificate does not find any place in the said notification. As against this, the Commissioner (Appeals) while holding that the certificate issued by the Tehsildar certifies that Khasra No. 152 is found in Village Narwal Pain has held that the appellants has fulfilled the locational eligibility criteria under the said notification and, therefore, has ordered refund. 3. Perusal of the said notification nowhere discloses Narwal Pain forming part of the area to which the said notification would apply. Apparently, therefore, in terms of the certificate issued by Tehsildar itself and area in which the Village Narwal lies cannot be construed forming part of the said notification. Prima facie, therefore, the appellants has made out prima facie case for grant of stay to the impugned order and hence the application is allowed, impugned order is stayed till the disposal of the appeal. 4. Application stands disposed of accordingly.
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