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Central Excise - Case Laws
Showing 21 to 40 of 221 Records
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2011 (1) TMI 1302
Demand - Clandestine removal - excess production of MS ingots - No experiment have been conducted in the factories of the appellants for devising the consumption norms of electricity for producing on MT of steel ingots - Tribunal also observed that the electricity consumption varies from one heat to another and from one date to another and even from one heat to another within the same date.
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2011 (1) TMI 1243
Disallowance of Cenvat credit - Utilization on the strength of the fake invoices issued by their supplier - reasonable steps to be taken - Imposition of penalty - Held that:- evidence on record indicates that the appellant was really engaged in the manufacturing activities and for the manufacture of the finished goods they needed copper rod/copper wire. Therefore, it cannot be said that copper rod/copper wire had not ever been received in their factory. The evidence brought on record shows that the copper rod/copper wire were received by them from their (the appellant’s) job workers after the job workers had converted the same from the ingots. But the crucial question is whether the ingots which were received by the job workers were also of duty paid nature and whether the same were really covered by the invoices issued by M/s. VKM (VKMW).
Impugned order has admitted itself that the goods in question (i.e. copper ingots) had been received by the appellant in the form of copper rod/copper wire after being converted (from copper ingots) by their job workers who had directly received the said copper ingots on these invoices from M/s. VKMW on behalf of the appellant. Further it has also been admitted in the impugned order that the appellant had discharged its contractual liability by making payment of these invoices through banking channel by cheques.
Neither the show cause notice alleges any other source of procurement of the said copper ingots, received under these invoices nor the impugned order found any other source of procurement of such copper ingots. The provisions governing the availment of the credit envisages that the assessee availing the credit should ensure that the inputs should have suffered duty at the hands of the manufacturer and the inputs covered under the invoices have been received and the same have been utilized in the manufacture of their final goods.
Appellant therefore, cannot be asked to go beyond the duty payment document in his hand. The appellant had checked the authenticity of the invoice issued by the manufacture and the latter is registered with the Central Excise. Thus, I find that the appellant have taken due care while procuring the duty paid inputs. Therefore, the Cenvat credit may not be disallowed on such inputs i.e. copper ingots received against these invoices simply on the ground that the goods were not the same. Thus, and impugned order is devoid of merit and the same is not sustainable - Following decision of M/s. Manaksia Ltd. v. C.C.E., Rajkot [2008 (6) TMI 149 - CESTAT AHEMDABAD] and C.C.E, Chandigarh v. Hitkari Industries Ltd. [2008 (2) TMI 124 - CESTAT, NEW DELHI] - Decided in favour of Appellant.
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2011 (1) TMI 1233
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... ... ..... tion of Revenue that the appeal is time-bar. 8. emsp On merit we find that the request for common/single registration is accepted by the Revenue with the rider for non-utilization of Cenvat credit for inputs as well as capital goods lying unutilized in the distillery unit for payment of excise duty on sugar. The appellants are aggrieved against this portion of the communication. This order is passed without affording an opportunity of hearing to the appellant therefore the order conveyed through the communication by Joint Commissioner dated 4-8-2006 in respect of the rider for non-utilization of Cenvat credit in the accounts of distillery unit for payment of Central Excise duty on sugar is set aside and this issue is remanded to the Commissioner of Central Excise to decide afresh after affording the opportunity of hearing and after taking into consideration the decision of the Tribunal. The appeal is disposed off as indicated above. (Dictated and pronounced in the open court)
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2011 (1) TMI 1232
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... ... ..... the basis that unless it is proved that the same is manipulated document, the same is to be accepted. We find in the grounds of appeal that there is no averment that the subsequent Certificate is manipulated document. 6. emsp The Commissioner (Appeals) also held that the demand is time-barred on the ground that the appellants submitted both the Certificates dated 23-6-2000 and the second Certificate dated 10-8-2000 and the differential duty was calculated on the basis of second Certificate and was paid on 13-3-2001 and the show-cause notice was issued on 23-4-2004 alleging suppression with intent to evade without payment of duty. As both the Certificates were submitted in the year, 2000 and the differential duty was also paid in the year, 2001, therefore, we find no infirmity in the impugned order whereby the demand was held to be time-bar. In view of the above discussions, the appeal is dismissed. Cross Objection also disposed off. (Dictated and pronounced in the open Court)
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2011 (1) TMI 1216
Compounding of offence under Section 9 - Whether bail should be granted or not – Search conducted on the factory premises and godown of the petitioner - Found three pouch packing machines and one Tobacco Mixture machine ,finished goods, raw Tobacco, packing materials - These machines were found not to have been declared by the firm - Officer seized all these machines and materials - Petitioner was found to have evaded the excise duty.
It is true that the alleged offence is non-cognizable and also compoundable as envisaged by Section 9A of the Act of 1944, but the amount of excise duty, the petitioner is found to have evaded, is undoubtedly large and shocking - It amounts to Rs. 338.25 lac - Therefore the act of the petitioner may be termed as ‘Royal Thievery’ which is opposed to both democracy and society order.
Held that:- Since, accused petitioner has evaded the excise duty causing a great loss to the public exchequer, and the offence being of grave nature, therefore petitioner should not be allowed bail.
Bail petition filed dismissed.
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2011 (1) TMI 1138
Shortage of Modvat inputs and capital goods in the factory premises - officers of the assessee admitted the shortage in their statement recorded during the course of search, the assessee produced several documents during the course of assessment proceedings to show that there was no shortage - adjudicating authority declined to look into these documents on the ground that they were produced as an afterthought and confirmed the demand – Held that:- matter is restored to the file of the adjudicating authority, appeal is accordingly disposed off
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2011 (1) TMI 1137
Refund – unjust enrichment – Held that:- Tribunal has also observed that factual data in support of the submissions raised for refund has not been produced. The Tribunal has also observed that the record could not disclose that as to what was the portion of price related to the gallery along with the duty liability and the detail break-up of the price charged for the goods prior to and after removal of gallery, appellant has failed to establish that they had not passed on duty burden upon the consumers, hence, refund would have amounted to unjust enrichment, no illegality in the order passed by the Tribunal, Appeal being devoid of merit stands dismissed
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2011 (1) TMI 1133
Penalty of short payment of duty - capacity of production based duty - provisional assessment - hed that:- The fact that the differential duty held payable by the provisional determination came down drastically shows that there is no mala fide on the part of the assessee to evade payment of duty. In my considered opinion, short-levy which came to be known consequent to re-determination after 5 to 6 years cannot invite penal provision prescribed under Rule 96ZO. The assessee could not have anticipated short levy arising out of re-determination after 5 to 6 years. There is no valid reason adduced for the inordinate delay in re-determination of duty liability in terms of sub-section (sic) of Section 3A. Under these circumstances, it is a fit case for not sustaining penalties, penalties are set aside and the appeals are allowed
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2011 (1) TMI 1131
Power of Commissioner (Appeals) to remand - As per the amended provision to Section 35A of the Central Excise Act, the power of remand has been withdrawn w.e.f. 11-5-2001 - Commissioner (Appeals) has no power to remand. - since the adjudication order is passed on violation of principle of natural justice matter remanded back to adjudicating authority.
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2011 (1) TMI 1130
Refund - claim rejected on the ground that appellant has failed to establish that they has not passed on duty burden upon the consumers - factual data in support of the submissions raised for refund has not been produced - record could not disclose that as to what was the portion of price related to the gallery along with the duty liability and the detail break up of the price charged for the goods prior to and after removal of gallery - burden in that regard was upon the appellants which the appellants have failed to discharge, appellant has failed to establish that they has not passed on duty burden upon the consumers, hence refund would have amounted to unjust enrichment, Appeal being devoid of merit stands dismissed
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2011 (1) TMI 1127
Party to the proceedings - Bank of India is sought to be joined as the party to the proceedings only on the ground that the bond that was executed by the appellants was on Bank of India - Bank of India to whom the notice was issued alongwith the show cause notice to the appellants did not opt to participate under said proceedings before the Adjudicating Authority - Bank of India has not challenged the impugned order, appellants having not disclosed any cause against the Bank of India to join it as the party to this proceedings, the application is rejected
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2011 (1) TMI 1126
Benefit of exemption denied on various grounds which were not reflected in the Show Cause Notice - SCN discloses that it relate to only one ground namely that the party is not entitled to claim the benefit of Notification No. 6/2006 under Sr. No. 91 thereof retrospectively as the party had already cleared the goods while claiming exemption under Notification No. 108/95 - Merely because it discloses incorrect provision of law while claiming such benefit that could not result in the denial of such benefit to the assessee, application is allowed, amount claimed under the impugned order is waived till disposal of the appeal
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2011 (1) TMI 1117
Recovery - Demand for payment of Service Tax with penalty, under Ext.P1 order - appeal as well as the application for dispensation filed in both these cases are pending consideration and disposal before the 1st respondent - Grievance of the petitioner is that in the meanwhile coercive steps of recovery is being threatened for realising amounts covered under Ext.P1. Therefore the petitioner seeks interference of this Court to restrain the recovery steps till the disposal of the appeals - Held that:- Writ petitions are disposed of directing the 1st respondent to consider and pass orders on Ext.P3 applications in both these cases, after affording an opportunity of hearing to the petitioner, as early as possible, recovery of amounts covered under Ext.P1 order in both these cases shall be kept in abeyance.
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2011 (1) TMI 1079
Interest liability for delay in payment of duty - connectivity problem in the OLTAS system in RBI/NSDL package system and hence, they could not transmit the e-payment on 31-3-2008 - Held that:- As delay of two days in remitting the duty in the Government account, this delay is not due to any violation or error on the part of the assessee, but is due to systems failure. The certificate issued by the bank is not disputed by the Revenue authorities, order is set aside and the appeal is allowed.
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2011 (1) TMI 1078
Writ - learned senior counsel restricted his relief for supply of documents which are going to be pressed into service or relied upon by the Adjudicating Officer during adjudication - Held that:- When we say relied upon or pressed into service, it would convey that any document which has been directly or indirectly pressed into service by the Adjudicator - Be it clarified and elaborated if in course of adjudication a document as indicated hereinbefore is pressed into service and relied upon directly or indirectly, it would be open to the petitioner to file an application for getting a copy of the same. In case an application is filed, as acceded to by Mr. Mukesh Anand, the Adjudicator shall dwell upon the same - writ petition stands disposed of
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2011 (1) TMI 1077
Cenvat credit on capital goods - Rule 3(5) of CENVAT Credit Rules, 2004 - whether the payment of duty on the basis of transaction value is not correct and the assessee was justified in availing CENVAT credit - Held that:- As the determination of the said question is excluded under Section 35(G) of the Act, the revenue has to prefer an appeal to the Apex Court under section 35(L) - Appeal is rejected
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2011 (1) TMI 1076
Refund - show cause notice was issued under Section 11-B of the Central Excise Act, 1944 - undue enrichment - Held that:- As decided in cases of Asea Brown Boveri Ltd. v. CCE, Bangalore [1998 (5) TMI 157 - CEGAT, MADRAS] & CCE, Indore Versus MEDI CAPS LTD. [2001 (12) TMI 103 - CEGAT, NEW DELHI] that the doctrine of unjust enrichment is not applicable to the refund claims under Rule 173-L and the ratio of the said decisions is squarely applicable to the instant case -
In view of the findings recorded and TRIVENI CHEMICALS LTD. Versus UNION OF INDIA [2006 (12) TMI 39 - SUPREME COURT OF INDIA] it has to be held that the matter which stand concluded, finally between the parties cannot be reopened by invoking Section 11B of the Central Excise Act, 1944. Decided in favor of the assessee
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2011 (1) TMI 1075
CENVAT Credit denied - Show Cause Notice was issued to the Appellants on the ground that for the month of November, 2006 Appellants filed monthly return on 5-12-2006 showing payment of duty Held that:- As Appellants had not paid duty on due dates therefore the Appellants were debarred from utilizing CENVAT credit for subsequent clearances - Appeal is dismissed
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2011 (1) TMI 1073
Whether the goods cleared by the appellant a 100% EOU to DTA were excisable or not? - fresh mushrooms - Tribunal directing the appellant to pre- deposit the amount of Rs. 1.25 crores - Held that:- Prior to 28-2-2005 as also subsequent to 28-2-2005 fresh mushrooms were excisable but were subjected to ‘Nil’ rate of duty - the demands raised herein pertains to the period from December, 2006 to June, 2008 when the orders passed in the appellant’s own case were in operation. As per those orders, the appellant was not liable to duty on clearances to DTA. In these circumstances, this is a fit case for grant of full waiver of pre-deposit.
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2011 (1) TMI 1060
Modvat credit in respect of welding electrodes used for repair and maintenance of plant and machinery denied - Held that:- As decided in Ambuja Cements (2010 (4) TMI 429 - CHHAITISGARH HIGH COURT), Hindustan Zinc Ltd. (2008 (7) TMI 55 - HIGH COURT RAJASTHAN) and Alfred Herbert (India) Ltd. (2010 (4) TMI 424 - KARNATAKA HIGH COURT) welding electrodes other items used for repair and maintenance of plant and machinery would be eligible for cenvat credit.
Modvat credit in respect of supporting structures- Held that:- As relying on APP Ltd. [2013 (7) TMI 494 - CESTAT BANGALORE] modvat calim is to be allowed. Issues are prima facie covered in favour of the appellants. Accordingly, dispense with the conditions of pre-deposit of duty and penalty of Rs.20,000/- and allow the stay petition
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