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Central Excise - Case Laws
Showing 61 to 80 of 166 Records
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2010 (10) TMI 876
Seizure - delay in releasing the goods and an executive fiat not to comply with the order dated 16-9-2010 passed by this Court. Held that:- Despite the fact that the order directing release of the goods had been made long back, whereby, the applicants/respondents were directed to release the goods forthwith, it is a matter of regret that the despite the fact that the applicants/original respondents have not challenged the said order before any higher forum, they have not complied with the same, which requires to be viewed seriously. However, as a last opportunity, the applicants/original respondents are directed to comply with the order dated 16-9-2010 passed by this Court, Counsel for the applicants shall communicate this order to the concerned applicant/original respondents for necessary compliance, all these three miscellaneous civil applications are dismissed
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2010 (10) TMI 874
Principle of doctrine of merger – Held that:- Principle underlying doctrine of merger can not be made applicable. The Revenue was aggrieved by part of the Order, which was detrimental to their interest, Revenue was entitled to file an independent proceeding in the shape of Appeal before the appropriate Authorities and Tribunal. Accordingly, the Revenue preferred Appeal to the Commissioner (Appeals). We direct the CESTAT to consider the Appeal filed by respondent-assessee on merits along with Appeal filed by the Revenue and dispose of the same by a common Judgment and order, after hearing concerned parties, Appeal is allowed accordingly.
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2010 (10) TMI 868
CENVAT credit on the capital goods used in the fly ash extraction denied - Held that:- As neither the extraction of fly ash takes place in the captive plant nor the fly ash generated is exclusively used in the factory of the appellant. This itself is sufficient to reject the claim of the appellant. The decision of the Ahmedabad Electricity Co. Ltd. case (2003 (10) TMI 47 - SUPREME COURT OF INDIA) also lends support to the view taken by the Commissioner (Appeals).
Decision of Birla Corporation Ltd. case (2007 (3) TMI 10 - SUPREME COURT OF INDIA) as relied upon by assessee was in relation to a question as to whether the duty paid on the spares of the ropeway used for the purpose of transporting crushed limestone from mines located at 4.2 kms. away from the factory could have been availed as Modvat credit. The said matter did not involve any other issue particularly regarding the captive use and necessity of subsidiary plant being a captive plant. Being so, the decision is of no help in the matter in hand. Against assessee.
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2010 (10) TMI 799
Cenvat credit - Modvat credit was denied to the assessee by the Joint Commissioner and confirmed by the Commissioner (Appeals) only on the basis of information furnished by the Superintendent, Central Office to the effect that the supplier did not submit the subject invoices along with their monthly return and details of the goods received and sold were not entered in RG 23D Register - 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. The appeal has been allowed in view of the amendment made in Rule 57G and the Board's Circular, which was issued in light of the amended rules, no illegality, infirmity or jurisdictional error committed by the Tribunal while passing the impugned order. We answer the substantial questions of law in favour of the assessee and against the Revenue, and dismiss the appeal accordingly.
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2010 (10) TMI 788
Whether the welding electrodes used for fabrication or installation of capital goods which are further used for manufacture of final product, qualify as input or capital goods or not – Penalty – Held that:- It is no doubt that the appellants are entitled for availment of Cenvat credit on welding electrodes which have been used for fabrication/installation of the plant and machinery which are capital goods as per Rule 2(k) of Cenvat Credit Rules, 2004, Explanation 2, as held by the Hon'ble High Court of Rajasthan in the case of Hindustan Zinc Ltd. (2008 -TMI - 30617 - HIGH COURT RAJASTHAN) but the appellants are not entitled for the Cenvat credit on welding electrodes which are used for fabrication of structural supports to the machinery as held by the Larger Bench of this Tribunal in the case of Vandana Global (2010 -TMI - 76147 - CESTAT, NEW DELHI (LB)) wherein it was held that structures do not qualify as capita goods. Hence the demand on welding electrodes which are being used for fabrication of supporting structures is confirmed and the demand on welding electrodes used for fabricating of plant and machinery is dropped, penalty is not leviable in these cases. Accordingly, the penalties are not liable to be imposed, interest is leviable for delayed payment as held by the Hon'ble Supreme Court in the case of SKF Ltd. - Accordingly, the appellants are liable for payment of interest on demand confirmed for the use of welding electrodes for fabrication of supporting structures, matter remanded back to the original authority to quantify the demand as discussed above and the appeals of the Revenue are disposed of holding that interest is payable but penalty is not leviable, all the four appeals are disposed of
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2010 (10) TMI 750
Failure to comply with the order of Pre-deposit under Section 35 of the 1944 Act - writ petitions were kept pending for hearing and during pendency of all these writ petitions, appeals were dismissed by the Appellate Tribunal for non-compliance of the orders directing pre-deposit - Held that:- wherever pre-deposit is required either the same should be dispensed with fully or partially on application being made. If such dispensation is not allowed then the Tribunal would issue a show cause before taking up the appeal for dismissal on account of failure of pre-deposit. On the date fixed, if cause is shown the Tribunal will consider the same and if sufficient cause is to be found then Tribunal can exercise all discretion and may extend the period or may re-consider the question of dispensation of pre-deposit on subsequent event - Matter remanded back to tribunal.
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2010 (10) TMI 677
Demand - Separate book of accounts for claiming the cenvat for common input - Rule 57CC of the Central Excise Rules, 1944 - The compounded rubber products manufactured and cleared by the respondent during the relevant period was rightly classified under heading 4005 and sub-heading 4005.90 by the Revenue inasmuch as, admittedly, the manufacturer had availed MODVAT credit of the duty paid on inputs used in the manufacture of the said goods - In this scenario, the products cleared by them after availing MODVAT credit on inputs was rightly classifiable under the residuary sub-heading 4005.90, residuary to SH 4005.10 - Before application of Rule 57CC, the manufacturer should classify his final products, correctly and ascertain whether some of such products are dutiable and other exempted - Appeal is disposed of
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2010 (10) TMI 649
Demand - whether Intravenous Fluids having a therapeutic value stood covered under Exemption Notification No. 3/2001 - burden is on the assessee to prove that the item falls within the four corners of the exemption notification - with effect from 1-3-2001 the exemption benefit, which is available to the Intravenous Fluid for sugar, electrolyte and fluid replenishment, does not extend to the Intravenous Fluid comprising of medicines and drugs like, anti-bacterial, anti-biotic and anti-microbial, having therapeutic properties or functions but is restricted strictly to those meant for the sugar, electrolyte and fluid replenishment only. However, there was no such restriction as far as the period prior to 1-3-2001 and since 4-5-2000 is concerned. The impugned order relating to the period from 1-3-2001, thus call for no interference. They cannot, however, be sustained as far as they relate to the period prior from 4-5-2000 to 1-3-2001 and that the notification dated 1-3-2001 has no retrospective effect. Additional Evidence - assessees filed applications for production of additional evidence in terms of Rule 23 of CESTAT Procedure Rule 1982 - no party to the appeal is entitled, as a matter of right, to produce any additional evidence either oral or documentary before the Tribunal. Undoubtedly, if the Tribunal is of the opinion, that for sufficient cause, such opportunity should be given, and then the parties can be permitted to produce such evidence - It is settled law, and the assessees are very well knew that the matters relate to the claim of exemption benefit and therefore the burden in that regard squarely lies upon the assessees to establish the claim and therefore it was necessary for the assessees to produce all the materials in support of their claim before the adjudicating authority - Decided against the assessee.
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2010 (10) TMI 645
Evasion of duty - Notification No. 211/83-C.E., dated 4-8-83 up to 24-3-85 and under Notification No. 100/85-C.E - misdeclaration of the “adjusted sale price” in relation to manufacture of “Panama” brand cigarette of the respective description for which protection of revenue was warranted - Revenue was of the opinion that there was no difference between two brands i.e. ‘Panama Viriginia G’ manufactured by NETCO and ‘Panama Virigina (Special), manufactured by GTC in its various factories - The recorded statement examined by the Authority brought to record shows that there was realisation of excess sale price and the price marked on the packets were lower than the actual price realised from sale of cigarettes - There was no disclaimer of the materials recovered in the course of search and statements recorded on the basis of such materials from deponents proved proximity and intimate connection thereof with the trade of appellants and persons connected thereto - It is well known, that it is very difficult for Revenue, to prove every link, in respect of the commission of the offence under the Act by direct evidence - An admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous - Held that: the declaration filed before the authorities were full proof of suppression of fact, when all connected evidence proved realisation of higher MRP. Accordingly, the Excise authorities having discharged their burden of proof, the appellants had no right to call for cross-examination on flimsy plea Regarding penalty - Having noticed that both the appellants had pre-meditated design through the joint venture approach to undervalue the goods resulting in loss of Revenue and been intimately connected with such loss causing evasion of Revenue, levy of penalty on both of them was justified - Appeals are dismissed
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2010 (10) TMI 632
Criminal revision - The learned Special Public Prosecutor for CBI cases fairly concedes that the passports were seized not because of any offence that was committed in respect of the passports, but in order to see that they do not leave the boundaries of the country without the knowledge of the Investigating Officer. However, the learned Special Public Prosecutor would say that the respondent will be satisfied, if the return of passport is conditioned by an undertaking that the petitioners, whenever intend to leave the country, should give information to the Investigating Officer regarding the date of their departure, place of destination and the expected date of return - This criminal revision case is allowed and the Court below is directed to return the passports of the petitioners on the condition that petitioners 1 to 5 giving an undertaking to furnish advance information to the investigating Officer regarding date of their departure, place of destination and the expected date of return.
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2010 (10) TMI 631
Supplly of goods to the Ministry of Defence - Notification No. 70/92-C.E., dated 17-6-1992 - exemption denied on the ground that the appellants were not job workers as they had used their own raw materials to manufacture the goods in question. - Held that: the appellants herein are eligible to the benefit of exemption in terms of Notification No. 184/86-C.E.(Now 63/95-C.E., dated 16-3-1995).
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2010 (10) TMI 570
Refund claim - Under Rule 5 of Cenvat Credit Rules - 100% EOU - Assessee have filed a photocopy of AR.I and shipping bills, in support of their claim, - The only grievance of the revenue is that these documents should be attested by the customs officer but as per Notification No. 5/2006, the assessee has to enclose the following documents - Held that:- the respondent has put their signature on the photocopies only for the attestation of the said documents - As per the said Notification, the attestation of these documents by the customs officer is not required - Accordingly, the lower authorities have rightly examined the said documents and allowed the refund claim of the respondent - The appeal filed by the revenue is rejected.
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2010 (10) TMI 558
Imposition of penalty under Rule 15 - Inputs have been used in the manufacture of dutiable as well as exempted products - manufacture of syringes and parts thereof - Parts have been cleared on payment of duty - r Commissioner (Appeals) took note of the fact that the appellants have already cleared parts on payment of duty and the duty so paid by them is in excess of the quantum of 10% of the value of the goods - Accordingly he set aside the duty confirmation - Penalty however imposed under Rule 6(b)(ii)of Cenavt Credit Rules, 2004 - The adjudication order also invoked Rule 15 and imposed penalty under the said rule - It is noted that Rule 15 and Rule 6(b)(ii) operating different areanas whereas Rule 15 operates in an areana where the cenvat credit stands wrongly taken by the assessee or wrongly utilized by him, Rule 6(b)(ii) is invocable where an assessee has issued excise invoices on the basis of which the user of the said invoice has taken ineligible benefit - Decided in favour of assessee.
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2010 (10) TMI 550
Cenvat credit - Capital Goods” in terms of Rule 2(b) of the Cenvat Credit Rules, 2002 - capital goods namely, Wear Plate, HRSS Plate, MS Plate, Angles, Channels etc - the Tribunal has held that the assessee was entitled for Modvat credit on capital goods namely, Wear Plate, HRSS Plate, MS Plate, Angles, Channels etc. used for connecting/fitting fans, casing, ducting in kilns for the manufacture of intermediate product ‘clinker’ - he matter of Commissioner of Central Excise, Jaipur v. M/s. Rajasthan Spinning & Weaving Mills Ltd. [2010 (255) E.L.T. 481 (S.C.)] argued that the issue sought to be raised by the revenue in this appeal stands concluded in favour of the assessee.
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2010 (10) TMI 540
Restoration of appeals - the applicant suffered unforeseen financial crisis due to general market conditions and global recession, no details have been disclosed for delay in filing the applications for restoration of appeals - Merely because the applicants have complied with interim order after the disposal of appeals, that cannot be a ground for restoration of appeals - Absence of the applicants in the Tribunal also discloses lack of interest in pursuing the matter. Hence, the applications are dismissed.
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2010 (10) TMI 533
Waiver of pre-deposit - Benefit of Notification No. 6/2006 dated 1-3-2006 - Held that :- there is no dispute that the springs manufactured and supplied by the appellant are meant for rotor blades used in wind mill generators which are eligible for the benefit of the notification - Prima facie, the parts of rotor blades can be considered as eligible for the benefit of Notification No. 6/2006, dated 1-3-2006 - Decided in favour of assessee.
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2010 (10) TMI 532
Concessional rate of duty - Notification No. 2/95-C.E., dated 4-1-95 -Benifit is denied that the fresh mushrooms cleared by the respondents for home consumption, on the ground that the processed mushrooms which were exported were not similar to the goods cleared for home consumption - Held that:- the Commissioner (Appeals) has given a detailed finding, after noting that the fresh mushrooms and processed mushrooms even though classifiable under separate chapter headings, belong to the same class of goods and therefore both are similar - Decided in favour of assessee.
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2010 (10) TMI 518
Rectify the defects - Appeal was filed by the Revenue on 11-8-2009 and on 28-12-2009, Registry had communicated to the concerned Commissionerate (the appellant herein) for removal of the defects as indicated in the said defect memo. Despite such communication, the appellants have not removed the defects - It is notice that this matter has came up for disposal many times and defects remained. It is to be noticed despite these being a specific direction of the Bench on 7-9-2010 to remove the defects, the same are not yet removed and nor any communication from the concerned Commissionerate - Hence, the appellants are not serious in prosecuting this appeal as the defects are not removed diligently - Thus, dismiss the appeal as not maintainable.
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2010 (10) TMI 517
Confiscation of goods - Penalty - The allegation against the appellant is that the production of 3 days was not entered in their statutory record and hence the goods are liable for confiscation - From the record, nothing is made out whether the appellant have intention to clear these goods without payment of Central Excise duty - The mere allegation is that the goods were not entered in their statutory record - As the appellant explained satisfactorily why the statutory record could not be produced during investigation, the goods cannot be held liable for confiscation - Accordingly, the confiscation of goods is set aside - With regard to penalty, there is no allegation against the appellants that they have played fraud, collusion, suppression of facts or mis-statement of facts with intention to evade duty - Hence no penalty is leviable on the appellant - Decided in favour of assessee.
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2010 (10) TMI 475
Power to remand the case - Does the Commissioner (Appeals) have the power to remand the case to the adjudicating authority after amendment of Section 35A(3) of the Central Excise Act, 1944 by the Finance Act, 2001 w.e.f. 11-5-2001 - in the case of MIL India Ltd. v CCE, Noida [2007 -TMI - 1196 - SUPREME COURT OF INDIA], the Apex Court has noted in para-4 of its judgment that the power of remand by Commissioner (Appeals) has been taken away by amendment to Section 35A w.e.f. 11-5-2001 under the Finance Bill, 2001 - Thus, agree with the Revenue that the Commissioner (Appeals) has no power to remand the case back to the original authority w.e.f. 11-5-2001.
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