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Central Excise - Case Laws
Showing 81 to 100 of 166 Records
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2010 (10) TMI 474
Demand of interest u/s 11AB - Limitation - There is no time limit fixed by the legislation for payment of interest in respect of the duty confirmed against the assessee - Interest being appending to the principal amount and when the principal amount is to be paid by the assessee to the exchequer, as confirmed in terms of Section 11A, interest liability would arise automatically - In the absence of any provision, laying down any time limit for raising of interest demand and in the light of the Bombay High Court judgment [in the case of CCE, Aurangabad v. Padmashri V.V. Patil S.S.K. Ltd. [2007 (7) TMI 6 - BOMBAY HIGH COURT] liability of interest is to be paid automatically without any notice and as such, the question of limitation does not arise - Hence, the appeal filed by the Appellants is rejected.
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2010 (10) TMI 473
Demand - once the matter has been finalised on merits, the adjudicating authority had no jurisdiction to initiate proceedings in the same matter without a provision to that effect in the Act - As per statutory Scheme, only remedy of the department against an alleged erroneous order of adjudicating authority is to invoke power under Section 35E(2) of the Act - Accordingly, this writ petition is allowed
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2010 (10) TMI 471
Manufacture - Imported rectifiers - The hi-pot test, programming, load sharing current sharing voltage test and burn-in test - in the absence of any technical write up as to how the rectifiers, after undergoing the processes as indicated herein, had resulted in a better rectifiers - Hence, unable to accept the assessee’s contention that the processes indicated herein , would amount to process which is incidental or ancillary for the completion of the manufactured product - Since the definition of ‘manufacture’ in Section 2(f) is not satisfied, it has to be concluded that there is no manufacture in the assessee’s premises. Cenvat credit - The processes carried out by the assessee would not amount to manufacture, the corollary is that the appellant had cleared the rectifiers on which the credit was availed as such - Hence, the appellant has to reverse the actual amount of CENVAT credit availed on such rectifiers. Penalty - Appellant had been filing monthly returns regularly and was intimating the Revenue about the activities carried on, as per his bona fide belief that the rectifiers, would amount to manufacture, has been discharging the Central Excise duty on final products cleared from his factory - This act of the appellants cannot be considered as mis-statement or suppression of facts - If the Revenue authorities were entertaining any doubt about the manufacturing activity, they could have verified, inspected, as the regular monthly returns were filed with them - It is not justified in imposing equivalent amount of penalty under Rule 15(2) of the CENVAT Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. Interest - The appellant is liable to pay interest on the amount, which has been utilized by him for discharge of duty liability.
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2010 (10) TMI 464
Cenvat Credit - Penalty - Proof - When the goods have been received from outside the State and are supposed to have passed through sales tax barrier on the border, the entry of the goods on the sales tax barrier is an important evidence regarding the entry of the goods into the state and in absence of such an entry, the burden would be on the assessee to prove that the goods had actually been received - All the consignments reaching Parwanoo, had come through the check post - When the goods are claimed to have been received from IPCL’s depot at Ludhiana, Baroda or Nagothane and the record show that the date of entry as per ST-XXVI-A form is prior to the date of despatch of the goods from the depot, the consignee have to explain this discrepancy - Since the respondent have not been able to give any explanation for this, the central excise authorities are justified in drawing adverse conclusion from this that these are only paper transactions and no goods has been received and, therefore, the invoices showing the sales of the goods received under such fictitious invoices to respondent would also be fictitious - Held that the impugned order setting aside the Cenvat credit demand alongwith interest against respondent and also setting aside the imposition of penalty on respondent is not correct.
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2010 (10) TMI 463
SSI exemption - Brand name of another - the Revenue authorities that the appellants had not considered the value of the exempt goods i.e. ‘Paragon’ brand hawai chappals for computing the aggregate value of clearances for the purpose of availment of benefit of SSI exemption under Notification No. 8/2003-C.E., as amended - Held that: as per clause (b) of para 3A that the value of the clearances shall not be taken into consideration which are ineligible for the benefit of exemption under para 4, would indicate that all other values of the clearances of the goods having brand name of other persons would be includable for determination of aggregate value of excisable goods for home consumption. If that be so, the impugned order which holds this view cannot be faulted and seems to be in accordance and in consonance with the law. As regards the claim of the assessee that the value needs to be re-quantified by considering the cum-duty value and also eligibility to Cenvat Credit on the goods on which the demand of differential duty raised and also on the question whether the rubber waste is an excisable product or not - Held that: these things needs to be re-considered by the Adjudicating Authority - Hence, remand the matter back to the Adjudicating Authority to re-consider the issue.
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2010 (10) TMI 458
Cenvat credit - Penalty - the demand is made on the ground that the goods sent to job worker was received short and in respect of the same challans in the annexure-II the demand is made on the ground that entire quantity of goods received from the job worker within 180 days - in the present case when full quantity of goods received from job worker, the appellants are eligible to take credit in respect of the duties paid on the inputs - nominal amount of penalty of Rs. 20,000/- and Rs. 25,000/- is imposed and appellants are not challenging the major amount of credit denied - The appeals are disposed off
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2010 (10) TMI 457
Penalty on Department officers - The impugned order of Commissioner,find that the stands officers of the department, penalized under Rule 26 as also under Rule 27, on the sole allegation that they have pre-dated their signatures so as to facilitate Shri Tejas Desai for claiming fraudulent rebate - The said findings are based on the sole statement of Shri Tejas Desai - Apart from the fact that he has retracted the statement, the Commissioner has himself come to a finding that Shri Desai has given a wrong deposition in his statement so as to mislead the investigating officers - The adjudicating authority having himself considered the said statement of Shri Desai being unworthy of credence, the same should not have been adopted by him for imposing penalty upon the officers - The said statement is in the nature of retracted statement of a co-accused and needs further corroboration by independent evidence - There being none in the present case, findings arrived at by the Commissioner cannot be upheld. Again, the appellants contention that non maintenance of proper records by the officers , would not call for penalty imposition under Rule 27 - Hence, set-aside the penalties imposed upon all the three appellants and allow their appeals.
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2010 (10) TMI 456
Demand - Classification - It is settled law that the burden to prove the exciseability is on the department - the goods have not reached the excisable stage and at any rate there is no “removal” to attract liability of duty - there is no need to go into other aspects as to whether the respondent is the manufacturer or the contractor, who was hired for fabrication of the vessel should be treated as manufacturer and as to whether Notification No. 67/95 is applicable or not - The goods should be excisable before any exemption notification can be considered - Decided in the favour of the assessee
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2010 (10) TMI 449
Appeal to Appellate Tribunal - Restoration - Appeals, which were dismissed for non-compliance - Submission that the challans, which indicate the payment of pre-deposit, does not indicate the name of the current applicants but, indicates the name of the assessee as Handum Industries Ltd., the main appellant - The applicants are Managing Director/employees of the main appellant and there is no reason for taking any objection for deposit by the company against the said employees - As regards the deposit made on behalf of other company ,find that it could be possible that M/s. Handum Industries Ltd., in order to prosecute the appeal filed by other company, had paid the amount on their behalf - Find that though the pre-deposit ordered was deposited after considerable time, in any case, there is a compliance of the order of pre-deposit of the amounts - Hence, applications for restoration of appeals need to be allowed.
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2010 (10) TMI 448
Demand - Limitation - Suppressed the facts - SSI -The appellant was manufacturing animal feed supplements and has also started manufacturing Ayurvedic medicines in the name of Caton, Catcough and Utcrolon - but under the bona fide belief the said items have not been disclosed - No document has been adduced to establish that at any point of time the appellant has disclosed to the Department that they were manufacturing Ayurvedic medicines - Thus, it is a case where appellant has suppressed the facts of manufacturing of Ayurvedic medicines. Held that: do not find any error in the order of the Tribunal in confirming the order of the adjudicating authority invoking the proviso to Section 11A of the Act - Accordingly, the appeal fails and is dismissed - Decided against of assesee.
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2010 (10) TMI 447
Demand - Cenvat credit - Rule 15 of the Cenvat Credit Rules, 2004 - The final product emerging during said trial runs, irrespective of the fact whether they were of inferior quality or superior quality or waste, were duly accounted for in their RG-1 Register - appellants have capitalized the cost of the said materials, thus requiring them to be considered as non-fixed assets or not, will not have any bearing on the disputed issue, which is required to be adjudged in the light of the Central Excise Provisions - The appellant’s reliance on the decisions laying down that the input credit is not to be denied on the ground that part of the input is contained in waste, stand distinguished by the Commissioner on the ground that in the Erstwhile Central Excise Rules, there was a specific Rule 57D, which is absent from the present Cenvat Credit Rules - Commissioner has observed that providing a copy of the balance sheet to the Revenue does not discharge their responsibility of providing all the relevant information to the department - The appellant having entered the entire raw materials as also the final product in the statutory records and having cleared the goods under the cover of central excise invoices, cannot be held to have suppressed or misstated anything with an intent to evade payment of duty - Decided in the favour of assessee
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2010 (10) TMI 446
Penalty - Export - Non-filing of ARE-1 - Instead of filing the ARE-1 within 24 hours, the appellants filed once in a month -issued 33 show-cause notices against 33 AREs and penalties of Rs. 1,000/- each of show-cause notices - The appellants submits that they were instructed orally by the Department - Hence, in the absence of any written order from the jurisdictional officer, that is only a technical lapse on the part of the appellants - Hence, the penalties are reduced to Rs. 2,000/- Appeals are disposed of.
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2010 (10) TMI 445
Refund - Unjust enrichment - Proof - Issued proposing to reject the claim on the ground that the incidence of duty was passed on by them to their buyers - The certificate stated to have been issued by the Chartered Accountant as well as the certificate stated to have been issued by the buyers it was sought to be contended that the same clearly disclose that the incidence of excise duty was not passed over to the buyers - The certificate by the Chartered Accountant having been issued on the basis of the account books maintained by the appellants, the same read with the balance sheet of the appellants for the relevant period it would apparently disclose that the amount of excise duty was not recovered from the buyers and, therefore, it was refundable by the department - The Chartered Accountant’s certificate would be a corroborative piece of evidence - But the corroborative piece of evidence cannot be itself a main piece of evidence regarding the fact which is required to be proved by the party - Proof regarding non-collection of the duty is established by cogent evidence, mere recording of the amount being recoverable in the account books that itself cannot be a proof of fact of non-collection of duty - Hence, the impuged order is held - Decided against of assessee.
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2010 (10) TMI 437
Penalty - Defaulted in payment of duty - the respondents have voluntarily paid the duty along with interest much prior to the issuance of the show-cause notice -Considering the same, the Commissioner had refrained from imposing the penalty - - Do not find any illegality committed in this regard by the Commissioner - There is no justification for interference with the impugned order on the ground sought to be canvassed to assail the said order - The appeal is dismissed - Decided in favour of assessee.
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2010 (10) TMI 424
Cenvat credit - Capital goods - Capital goods are removed after use - The capital goods on which Cenvat credit had been taken or removed after being used, the Manufacturer should pay an amount equal to the Cenvat credit taken on the said capital goods reduced by 2.5% for each quarter of a year or part thereof from the date of taking the Cenvat credit - The Board’s Circular dated 1-7-2002 stated that the capital goods on which Cenvat credit had been taken or cleared under Rule 3(4), the Manufacturer would be required to pay an amount equal to the duty at the rate prevailing on the date of clearance and on the value determined under the provisions of Section 4 of the Central Excise Act and the depreciation as per the rates fixed in the Board’s Letter dated 26-5-1993 should be allowed - Hence, the order of the Tribunal in remanding back to the original authority for re-determination of the amount after allowing depreciation - The appeal fails and the same is dismissed.
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2010 (10) TMI 423
Drawback duty - Fixation of brand rate - Rule 12A of the Central Excise Rules - Notification No. 166/81 dated 23-9-1981 - Principle of natural justice - Under the scheme of levy of excise, Tea was required to bear duty of excise first at the garden stage and then at the packing stage after it was blended and packed - the issue in Writ Petition No. 2611 of 1988 was in respect of the communications by which the applications of the Petitioners for fixation of brand rate were rejected - It is pertinent to note that except referring to the said Writ Petition in the subject column of the order, there is absolutely no reference to the issues arising in the said Writ Petition No. 992 of 1987 in the body of the impugned order except the operative part - In the case of Universal Generics Pvt. Ltd. v. Union of India (1993 -TMI - 43624 - HIGH COURT OF BOMBAY) - Held that: The underlying principle laid down in the said judgments is that in absence of any period of limitation, it is required that every Authority is to exercise the power within a reasonable period - Decided against the assessee.
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2010 (10) TMI 408
Natural justice - There is no threadbare discussion vis-à-vis above three contentions raised - The Tribunal may have been justified in refusing to grant adjournment - Tribunal is not bound to adjourn the case merely because the adjournment is sought - Similarly, the Tribunal is not bound to transfer the case to the Division Bench merely because there was a request made in that behalf - The Tribunal was bound to consider and appreciate the written submissions which were filed on record - The written submissions were not such which one could brush aside without application of mind - The impugned order does not disclose any application of mind or consideration to the contentions raised - Held that the impugned order is in breach of principles of natural justice as such bad in law - Hence, the impugned order is set aside and the matter is remitted back to the Tribunal
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2010 (10) TMI 400
Classification - Demand - the products in question do not contain any soap but are organic surface active agents - The difference between the two entries is that whereas Chapter 34 covers cleaning preparations Chapter 33 includes bath preparations - That in view of the HSN their products under reference are specifically excluded from the scope of Heading 33.07 and specifically included under the scope of Heading 34.02 - The product being an OSSA product and keeping in view the amended provisions of explanatory notes, such products have to be held as classifiable under Heading 34.02 - Tribunal in the case of Mul Dentpro Pvt. Ltd. v. CCE, Vapi 2007 -TMI - 2681 - CESTAT, AHMEDABAD) in which case Pears Face Wash, produced on the principle of surface active agents was held to be classifiable under Heading No. 34.02 - Accordingly decided in the favour of the assessee
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2010 (10) TMI 399
Exemption - whether the appellant is eligible for the benefit of concessional rate of duty in respect of EBMS cleared by them - This issue had come up before the Tribunal in the case of same assessee and while considering the application for stay, this Tribunal held that, duty payment by the due date as per Rule 8 of the Central Excise Rules, 2002 would be sufficient and goods have to be treated as duty paid though the same was not paid at the time when it was cleared and used - Held that it cannot be said that the MS used in the manufacture of EBMS is to be treated as non-duty paid subject to the condition that appellants have discharged the liability before the due date for payment of duty on said MS - Therefore, the Commissioner’s order that appellants are not eligible of exemption notification, cannot be sustained. Limitation - Demand and penalty - There is no mention about the invocation of extended period in the show cause notice and whether there was any suppression of fact/mis-declaration/fraud or collusion and there is no discussion available in the show cause notice or in the order in original - The demand is for the period April 2003 to June 2003, whereas the show cause notice was issued on 19-4-2005 - Extended period is not invoked in the show cause notice or in the order in original and hence the demand cannot be confirmed. Further, no penalty has been imposed under Section 11AC of Central Excise Act, 1944 - Thus, the demand is required to be set-aside. Refund claim - where the sale price of end product is controlled by the Government, assumption that assessee would have passed on the incidence of duty to the customer, is neither reasonable nor logical - Under these circumstances find that the appellant is eligible for the refund claimed by them.
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2010 (10) TMI 398
Waiver of pre-deposit - Bogus manufacture - Cenvat credit - The appellant during the period from April 2003 to December 2005 they took Cenvat credit on the basis of the invoices for purchase of HR coils from SAIL, but instead of using those HR coils in their factory for manufacture of CR strips, the HR coils were sold as such, and only bogus manufacture of CR strips was shown in their records and thereafter the sale of CR strips was shown to various customers under their invoices, without actually selling any material and thereby enabling the so called buyers of CR strips to take Cenvat credit on the basis of such bogus invoices - Held that the appellant have not been able to establish prima facie case in their favour and as such it is the Department which has a strong case against them. As regards the conduct of the appellants, the nature of the allegations against them, which prima facie appear to be supported by concrete evidence on record, are of very serious nature and amount to a massive fraud - Decided against of assessee. Waiver of pre-deposit - demand from units engaged in slitting - The units engaged in slitting of the HR coils which had been done by them in respect of the HR Coil received by them from the appellant - It is not the allegations of the department that it is they who are involved in the illicit sale of the HR coils in respect of which Cenvat credit has been taken by the appellant - Held that the requirement of pre-deposit the penalty imposed on them for hearing of their appeals would cause undue hardship - Accordingly, the pre-deposit of penalty of them is waived and the recovery thereof stayed.
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