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Central Excise - Case Laws
Showing 41 to 60 of 166 Records
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2010 (10) TMI 981
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... ... ..... er the provisions of Rule 57AC(2C), Cenvat credit can be availed on capital goods in the factory prior to 1-4-2000 but not installed prior to that date subject to the condition that during the financial year 2000-2001, the credit can be availed only for an amount not exceeding 50 of the duty paid on the goods. The capital goods were installed in the appellant’s factory on 11-4-2000 i.e. subsequent to 1-4-2000. There is no dispute that they have not availed credit in excess of 50 ceiling. We, therefore, agree with the appellant that they are entitled to credit of ₹ 2,14,182/-. As regards the balance amount, in the light of the decisions of the Tribunal in Shiva Agrico Implements Ltd. v. C.C.E. - 2002 (149) E.L.T. 716 and C.C.E., Coimbatore v. Sonal Vyapar Ltd. - 2009 (245) E.L.T. 642, credit is admissible. We, therefore, extend credit of this amount also. In the result, the impugned order is set aside and the appeal allowed. (Dictated and pronounced in open court)
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2010 (10) TMI 980
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... ... ..... Commissioner (Appeals) in the impugned order. Stay of the impugned order would virtually result in refraining the department from taking steps for recovery of interest. This certainly cannot be said to be in the interest of the revenue. It is really surprising that the application for stay is being filed by the department without even ascertaining the consequences of grant of stay and the order passed by the Commissioner (Appeals) clearly shows mechanical approach by the review committee while deciding the requirement for filing of applications for stay of the order passed by the lower authorities. 2. In the result application is dismissed.
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2010 (10) TMI 978
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... ... ..... ra) is also not relevant as in that case also it was held that on the date the goods were cleared initially, if such price escalation has not taken place, the assessee could not foresee, the subsequent escalation price. 8. But in this case there is no doubt that goods were cleared at the value as per Rule 8 of the Central Excise Valuation Rules, 2000 instead of CAS-4 which was known to the appellants and the appellants has not disputed the payment of differential duty. So, in this case the duty paid on later date which was to be paid earlier as per CAS-4, the decision of the SKF India Ltd. (supra) is squarely applicable wherein the Apex Court has held that the applicant has not disputed the payment of differential duty. Hence, the interest on delayed is leviable as per Section 11AB of the Central Excise Act, 1944. Accordingly, the impugned order is confirmed, the levy of interest is upheld and appeal filed by the appellant is rejected. (Pronounced in court on 6-10-2010)
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2010 (10) TMI 972
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... ... ..... by the ld. DR, a query has been made to the DR about the status of Madura Coats Pvt. Ltd. before the Hon’ble Madras High Court. In reply to the query, he submitted that no stay has been granted by the Hon’ble High Court and he does not know what is the status and he sought time to find out the status of this appeal before the Hon’ble Madras High Court. Further, I find that in the case of Cummins India Ltd. v. CCE reported in 2007 (219) E.L.T. 911 (Tri.-Mum.), this issue has been dealt by this Tribunal holding that the provisions of Rule 3(4) of Cenvat Credit Rules, 2002 and Rule 3(5) of Cenvat Credit Rules, 2005 are not attractable on removal of the capital goods removed after use and duty has been paid on transaction value. Same view has been confirmed by the Mumbai High Court reported in 2009 (234) E.L.T. A120 (Bom.). Accordingly, I do not find any merit in the Department’s appeal and the same is rejected. (Dictated and pronounced in the open Court)
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2010 (10) TMI 971
Review application against ex parte decree - Held that:- It is for the first time contended in the application for review by the petitioner that there was a concluded contract between the parties and the rate, as quoted, was inclusive of excise duty and other taxes and after acceptance of the unit price which is inclusive of excise duty, the opposite party in effect has given a go-bye to clause 10 of the general condition of contract. The said order was further sought to be reviewed on another ground that the opposite party being state cannot stand on twofolds i.e. on one hand accepting the quotation which is inclusive of the excise duty and on the other hand after coming to know that the petitioner has got the exemption on excise duty, asking for refund of the excise duty. Another ground which was taken in the review application is that subsequent to the passing of an ex parte decree the competent authority under the Central Excise Act, 1944 has held that the petitioner has not charged any extra amount as Central Excise duty.
The discovery of a new and important matter or an evidence does not mean the discovery of a matter or evidence subsequent to the passing of the decree otherwise the next sentence “after the exercise of the due diligence was not within his knowledge or could not be produced by him at the time within the decree was passed” shall render superfluous. Thus once a case is decided it is hardly permissible to review that decision merely on the ground that subsequent to the said decision some other decisions have to be taken. Revisional application dismissed.
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2010 (10) TMI 970
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... ... ..... atisfied, the penalty as prescribed under Section 11AC of the Act had to be imposed and in that event there was no discretion with the authority to impose lesser penalty than what is prescribed in the aforesaid provision. 4. Having regard to this law laid down by the Supreme Court in the aforesaid two judgments, we answer the question in the negative i.e. the penalty imposed under Section 11AC of the Act cannot be less than the amount determined to be payable under Section 11A(2) of the Central Excise Act, 1944 as Section 11AC laid down in such circumstances 100% penalty is to be imposed. There would not be any discretion of the CESTAT to reduce the penalty. The order of the Tribunal reducing the penalty, therefore, has to be set aside. We have not examined as to whether conditions stipulated in Section 11AC of the Act were satisfied or not as that was not the issue posed in these proceedings. 5. This appeal accordingly succeeds and is hereby allowed. No costs.
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2010 (10) TMI 943
Whether the respondent can reverse the Cenvat credit availed on capital goods treating it as undesirable credit to claim depreciation under Section 32 of the Income Tax Act, 1962, and pay duty from PLA otherwise payable after exhausting Cenvat credit balance thereby claiming refund of the same under Notification No. 39/2001-C.E., dated 31-7-2001?
Whether the option to avail Cenvat credit or claim depreciation under Section 32 of Income Tax Act, 1962 is a one time option or the assessee can choose to opt out of option once exercised?
Whether in a situation where benefit of an exemption notification is being availed in which mandatory condition to avail the substantive benefit is the utilization of the Cenvat credit, can assessee at his will opt out midway to avail the benefit under Income Tax Act, 1962, thus rendering mandatory condition of exemption notification inapplicable?
Whether Tribunal erred in not following its own decision, in the case of M/s. Pranam Industries Ltd. in Appeal No. E/3758/2005?
Held that:- Reversal of credit before utilization amounts to not taking credit and as such it cannot be said that the assessee had violated the provisions of the subject notification. In the circumstances, the Tribunal was justified in holding that when the clearances started from the assessee’s unit there was no Cenvat credit available in its account and that there was nothing wrong in taking a decision to claim depreciation instead of Cenvat credit and reversing the same before it started clearance of goods from its factory, and as such the refund had rightly been sanctioned.
For the foregoing reasons, there being no infirmity in the impugned order of the Tribunal, the same does not give rise to any question of law, as proposed or otherwise, much less, a substantial question of law, so as to warrant interference. The appeal is, accordingly, dismissed.
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2010 (10) TMI 940
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... ... ..... taking necessary action to observe the principle of natural justice. 6. emsp Having observed as above, we are constrained once again to set aside the impugned order and remand the matter to Commissioner for fresh adjudication. Needless to say that the copies of the documents would be supplied to the appellant as early as possible. For the said purpose, the appellant would write to the Commissioner for supply of said documents within a period of one month from the receipt of this order. Thereafter, such copies would be supplied by Commissioner within a period of two months from the date of making of request by the appellant and thereafter the matter would be adjudicated as early as possible. Needless to say that the appellant would cooperate and not seek unnecessary adjournments. They would also place on record their correct address for correspondence by the department. 7. emsp Stay Petitions as also appeals get disposed off in above manner. (Dictated and pronounced in Court)
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2010 (10) TMI 933
Refund claim - unjust enrichment - Section 11-B of the Act - case of appellant is that mere fact that in gate passes/invoices, duty payable was mentioned which was never factually received, it could not be held that the assessee had passed on burden to the consumers and thus the finding of unjust enrichment was erroneous - Held that: - once the gate passes/invoices showed that that duty was part of the invoices issued, in such a situation presumption is that the duty has been passed on to the consumers and the said presumption is not rebutted merely by the fact that the assessee did not actually realize the amount - Once the duty is added in the invoices, the purchaser gets benefit of MODVAT credit. Learned counsel for the assessee has not been able to show any law that in such a case, the burden on the assessee will stand discharged - appeal dismissed - decided against assessee.
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2010 (10) TMI 907
Delay condoned - As special leave petitions against the relied upon judgments were dismissed on 6th July, 2009 and 14th December, 2009. In that view of the matter, this special petition is also dismissed.
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2010 (10) TMI 901
Revision applications - rebate claim - assessee claimed the rebate, which is an export entitlement, has not produced any bill of export as required under the SEZ rules and also as per Circular No. 29/2006-Cus., dated 27-12-2006 – Held that:- procedural infractions of notifications/circulars should be condoned if exports have really taken place and the law is settled that substantive benefit cannot be denied for procedural lapses, rebate allowed, Revision applications are rejected
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2010 (10) TMI 900
Writ petition - summons issued by the Excise authorities - held that:- An Excise officer issuing summons to appear with records cannot be said to be deprivation of liberty of an individual. This Court do not find any acceptable legal ground raised in the writ petition. It can be presumed that it was for egoistic reasons and not on any concrete legal foundation. If the petitioner is unfamiliar to explain the accounts maintained by them, it is always open to them to take along a person who is well versed with their accounts to explain to the officer his queries. But on that ground they cannot seek to dispense with their personal appearances. If the authority wants to make further clarification, they can always question the petitioners, who were responsible in running the business. This Court do not find any legal injuries were suffered by the petitioners by the receipt of the summons so as to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India.
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2010 (10) TMI 893
Job work - appellant was manufacturing and clearing the product without payment of Central Excise duty and without observing any central excise formalities - whether the learned Commissioner was correct in allowing the benefit of Modvat credit to the respondents in this case or not based upon Chartered Accountant’s certificate only - duty liability was worked out on the basis of a Chartered Accountant’s Certificate and the Modvat eligibility was arrived at based on the Chartered Accountant’s Certificate and verification about duty paid nature of the raw material/packing material and the quantum of excise duty credit available thereon were not done - in the absence of any challenge to Chartered Accountant’s Certificate, and any contrary evidence to suggest that the inputs/raw material which were consumed by the assessee were not duty paid, order is correct and legal. Appeal of the Revenue being devoid of merits is rejected
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2010 (10) TMI 889
Writ Petition - recovery proceedings have been initiated against the petitioner with respect to excise dues, for which an order was passed on 23-3-07, order was communicated to it on 27-7-09 and thereafter the petitioner had filed an appeal, as mentioned in the writ petition, which is pending before the appellate authority - neither the order by which, the petitioner is aggrieved has been filed nor any relief has been claimed against the said order - There is no occasion for the petitioner to approach this Court at this stage, in case the petitioner seeks any interim relief or wants to deposit the amount due, it can approach the Tribunal, where the matter is pending, writ petition is dismissed
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2010 (10) TMI 886
Revision application - Rebate claim denied as required permission not undertaken - Held that:- As applicant has failed to fulfill the condition by not getting the required permission from the jurisdictional Commissioner Central Excise for exporting the goods beyond a period of six months, so rebate claims cannot be sanctioned as this is a substantial/mandatory requirement. Since the Commissioner of Central Excise has not granted extension of six months time period for export of goods, the mandatory requirement of exported goods within 6 months from the date on which goods were cleared from factory of manufacture is not fulfilled, rebate claim is not admissible to the applicant and the applicants appeal was rightly rejected by the Commissioner (Appeals), Revision application is rejected being devoid of merit.
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2010 (10) TMI 885
Confiscation and penalty - Non-accountal of goods - Goods were lying in the factory and non-entry in the statutory record – Held that:- Following the decisions of Ronak Laminex (P) Ltd. (2007 (8) TMI 607 - CESTAT, AHMEDABAD) and Amrut Ceremics (2006 (12) TMI 32 - CESTAT, AHMEDABAD) it is to be held that in this case also, the confiscation and penalty is not warranted under Rule 25 of Central Excise Rules 2002. Hence the impugned order for confiscation and imposition of penalty under Rule 25 is set aside. But as submitted by the learned Advocate, it is a procedural lapse of the Central Excise provision. Hence, the penalty under Rule 27 can be imposed. Accordingly, penalty under Rule 27 is imposed to Rs. 2,000/-, the appeals filed (by the Revenue and assessee) are disposed of and the cross objections are also disposed of in the above manner.
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2010 (10) TMI 884
Penalty u/s 11AC of the Central Excise Act, 1944 r.w.r. 13/15 of of CENVAT Credit Rules, 2002/2004 – Held that:- There is no specific provisions under which the Department wants to impose penalty under Rule 15. There is no proposal for separate penalties in the show cause notice, no specific allegation for specific penalty has been made. Hence the penalties under Rule 15 are not imposable on the assessee and there is proposal for imposing penalty under Section 11AC of the Central Excise Act read with Rule 15 of the Cenvat Credit Rules, 2002/2004 - no merit in the appeals filed by the Revenue. In favour of assessee.
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2010 (10) TMI 883
Cenvat credit on Welding Electrodes used for repair and maintenance of their plant and machinery - whether proper permission of the Committee of two Commissioners has been obtained or not? - Held that:- The assessee is entitled to availament of cenvat credit on welding electrodes, which are being used in maintenance of plant and machinery as capital goods or inputs.
According to section 35(B)(I)(b)(clause ii) there must be two persons or two Commissioners or Chief Commissioners to review the order placed before them and to arrive at a decision whether the appeal is to be filed or not. In this case, although the Commissioner of Central Excise Meerut-I was holding the additional charge of Commissioner of Central Excise Meerut-II but that cannot be termed as a Committee of Commissioners constituted in the provisions of law. Hence the preliminary objection taken by the assessee is a valid objection. Hence the appeals filed by the Revenue are not proper and correct in view of the law as there is not proper permission from the Committee of Commissioners to file the appeals before this Tribunal. In favour of assessee.
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2010 (10) TMI 881
Manufacture - packing and re-packing the input - Cenvat Credit on the items viz. “Tooth Brush” - Held that:- Provisions contained in Section 2(f) of the Central Excise Act, 1944 which defines the word “manufacture”. It includes any process in relation to the goods specified in the Third Schedule, which includes packing or re-packing of such goods in a unit container. In the Third Schedule, at Serial No. 38, under Heading - Sub-Heading of Tariff Item, Entry No. 3306, is in respect of tooth paste. Hence, the process of packing and re-packing the input, that is, toothbrush and tooth paste in a unit container would fall within the ambit of “manufacture” as defined under the Act and as such, the assessee would be entitled to claim cenvat credit on such input.
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2010 (10) TMI 880
Revision application - rebate claims denied as original, duplicate and triplicate copy of ARE-1, duplicate copy of invoice were not enclosed with the said claims - Held that:- Government observes that instead of rejecting the rebate claims for non-submissions of the original copies of the ARE-1s purportedly lost by the applicant as per FIR lodged with the Police authorities, the Asstt. Commissioner should have considered collateral evidence to verify whether the duty paid goods have actually been exported or not, Government sets aside the impugned orders and remands the case back to the original adjudicating authority to decide the case afresh after giving proper opportunity to the applicant who may submit all requisite collateral evidences/documents to prove the export of duty paid goods as per provisions of Notification No. 19/2004-C.E. (N.T.), dated 6-9-04 read with Rule 18 of Central Excise Rules, 2002, order-in-appeal and order-in-original are set aside, Revision application is being disposed in above terms.
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