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Central Excise - Case Laws
Showing 41 to 60 of 221 Records
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2011 (1) TMI 1025
Selling and distribution expenses - Whether form the part of assessable value? - Held that:- Selling and distribution expenses shall not form part of assessable value when they are captively consumed by the assessee, appeals filed by the Revenue deserve no merits. no reasons to interfere with the impugned order, the same are confirmed, appeals filed by the Revenue are rejected.
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2011 (1) TMI 1024
Undervaluation - short levy of duty - Held that:- Commissioner (Appeals) has correctly recorded the facts of the case saying that 'appellant company has transferred sub-assemblies, which are in nature of semi-processed goods to their another unit situated at Pune for certain job work and returned due to tight delivery schedule. These transfers were effected on payment of duty and the receiving the factory used to take Modvat Credit. The valuation was done by the appellant on the basis of cost of manufacture and profits i.e., cost of raw material plus 15% described as transfer cost and 15% margin on the total of two'.
As per Rule 57F, it is clarified that this sub-rule did not require the manufacturer to ascertain and declare the value of partly processed item and in this case the assessee has already paid the duty on the cost of inputs plus 32.25% of the cost of inputs as profits, which is definitely more than the duty required to be reversed. In this scenario, no infirmity with the impugned order, the same is upheld as appeal filed by the Revenue deserves no merits and the same is rejected.
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2011 (1) TMI 1023
Penalty under Rule 173Q (1) of Central Excise Act - appellant passed the MODVAT credit without actually selling the goods - Held that:- Shortage of inputs found at the premises of GEPL is not of the goods mentioned in the invoices in which the discrepancy was found. Moreover, the investigating authority has not recorded the statement of the person who was the owner of the vehicle mentioned in the invoices in which the discrepancy was found - No penalty can be levied on them for their bonafide act under such clause (bbb) of sub-rule 1 of Rule 173Q, without giving any finding, the adjudicating authority without specifying particular clause of Rule 173Q (1) has imposed the penalty. As decided in Amrit Foods (2005 (10) TMI 96 - SUPREME COURT OF INDIA) neither show-cause notice nor the order of Commissioner has specified which particular clause of Rule 173Q (1) or erstwhile Central Excise Rules, 1944 has been allegedly contravened by the appellant, assessee is to put on notice as to exact nature of contravention for which under provision of Rule 173Q, penalty is imposable - order imposing penalty, is set aside and the appeals are allowed.
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2011 (1) TMI 1022
Demand of duty - using the brand name by the other manufacturer for which the appellants are in entitled for SSI exemption - protective show-cause notice was issued to the appellants while the proceedings were pending before this Tribunal and the same was not brought in the knowledge of the Tribunal - Held that:- If there is any grievance of the department, they should have come before this Tribunal in the proceedings which were pending there. As department did not take any steps to contest the issue before this Tribunal and the same has attained finality which has been followed by the adjudicating authority in this case as judicial discipline, the show-cause notice was dropped. In the impugned order, the lower appellate authority has in going into this aspect at all and taken the submissions of the revenue and passed the order impugned which is not correct in the eyes of law. It is well settled law in the case of Kamakshi (1991 (9) TMI 72 - SUPREME COURT OF INDIA) judicial discipline is to be followed by lower courts. In this case the lower appellate authority has not followed the judicial disciple, hence, no other option to set aside the impugned order. Appeal allowed.
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2011 (1) TMI 1018
Duty confirmed - maintainability of appeal - Commissioner of Central Excise has directed the Dy. Commissioner of Central Excise, Belapur to file an appeal before the Commissioner (Appeals) against the order passed by the Additional Commissioner - Held that:- Silver Streak Welding Products (2007 (9) TMI 222 - HIGH COURT BOMBAY) held that 'the authority on whom the power was confirmed is in the adjudicating authority, appeal filed by the Deputy Commissioner before the Commissioner (Appeals) in the case in which the impugned order is before us in challenge was not maintainable before the Commissioner (Appeals), Appeal is allowed with consequential relief, if any.
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2011 (1) TMI 1017
Goods cleared without payment of duty - raw material and the finished goods lying in the factory unaccounted were detained under the reasonable belief that the same were to be removed for clandestine removal - demand raised along with penalty - Held that:- The appellant have conceded the confiscation of 150 barrels seized from the vehicle. Therefore, there is no infirmity in the adjudicating authority's order insofar as confiscation of these goods are concerned.
As regards the good seized from the factory premises on 15/04/2006 valued at ₹ 14,61,498/- is concerned the department could not prove that there was any attempt on the part of the appellant to remove the goods clandestinely. Therefore, the seizure and confiscation of these goods is not sustainable in law.
As regards penalty on Shri Haresh Dharmani, Director of the assessee, the department failed to produce any evidence that he was in any way involved in the transportation / removal, etc. in respect of the goods in question - unable to produce any evidence regarding any direct involvement of the Director of the company. Therefore, penalty on the Director is not sustainable in law.
So far as penalty under Section 11AC is concerned, no option was given to the appellant at the time of passing of the adjudication order. Therefore, option should be given to the appellant for payment of 25% of penalty in view judgment in the case of K.P. Pouches (P) Ltd. vs. Union of India (2008 (1) TMI 296 - HIGH COURT OF DELHI). Assessee also contended that so far as 178 barrels are concerned they were not given the documents seized by the department which because of which they could not establish before the department that these goods were cleared on payment of duty. Therefore, this aspect requires to be reconsidered - case remanded to the adjudicating authority for deciding the penalty amount and interest in respect of 150 barrels. Redemption fine in respect of these goods should be re-determined considering the value of the goods and the duty amount involved.
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2011 (1) TMI 1016
Duty demand with interest - calculation of interest - CENVAT credit reversed but they did not pay interest - Held that:- As there is no dispute that the respondents were not entitled for the credit on the items in question. The interest is leviable on wrongly utilised credit is also not in dispute. Thus agreeing with the respondent's contention that the interest liability would arise from the date of wrong utilisation of credit in view of the judgment of Commissioner of Central Excise, Delhi vs. Maruti Udyog Ltd. (2006 (10) TMI 63 - HIGH COURT,PUNJAB & HARYANA). In the instant case, interest has been calculated from the date of credit taken. Therefore, the quantum of interest has to be calculated from the date of wrong utilisation of the credit - case is remanded to the adjudicating authority for the limited purpose of re-quantifying the interest.
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2011 (1) TMI 1015
Duty demand, interest and penalty of equal amount - the appellant was engaged in the manufacture of dutiable as well as exempted products out of common inputs and was availing CENVAT credit for the entire inputs used in the manufacture of both the products without following the procedure as laid down under Rule 6(2) of CENVAT Credit Rules, 2004 as appellant did not pay an amount equal to 10% of the total price excluding sales tax and other taxes paid on such goods as prescribed under Rule 6(3)(b) - Held that:- Provisions of Rule 6 of CENVAT Credit Rules has been amended and retrospective effect has been given to the amendment. This amendment was not before the adjudicating authority. Therefore, the case is remanded to the adjudicating authority to decide the issue afresh, after considering the amendment carried out to Rule 6 of CENVAT Credit Rules, 2004, appeal is disposed of by way of remand.
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2011 (1) TMI 1012
Refund - unjust enrichment - duty paid subsequent to the clearance of the goods - Held that:- In the absence of Section 28D presumption, it was the burden of the department to establishment that incidence of duty had been passed on to the buyer. From the records as find that the department has not discharged this burden. So far as the decision of Sahakari Khand Udyog Mandal Ltd. (2005 (3) TMI 116 - SUPREME COURT OF INDIA) Commissioner (Appeals) has given categorical finding that the department had not found or arrived at any conclusion regarding passing on of the incidence of duty in order to discharge this burden on it. The appellant could not produce anything new or contrary to the above. Therefore no infirmity with the concurrent finding of the lower authorities.
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2011 (1) TMI 1011
Shortages of inputs and finished goods - SCN issued alleging that the shortages occurred are due to the fact that the noticee failed to adopt the prescribed procedure in such manner, as he is required to do and also failed to offer any plausible explanation for the discrepancies noticed by the officers proposing the demand of duty and on shortages of raw material and finished goods - Demand, interest and penalties - Held that:- In the absence of proper explanation and without corroborative evidence of removal of the goods from the factory premises of the appellants, the demand is not sustainable. Moreover, the show-cause notice also alleged that the appellants are not maintaining the statutory records in the manner prescribed under the law. In that event, the clandestine removal cannot be alleged. As it is an admitted fact that the appellants are not maintaining their records as prescribed under the law, they are liable to be penalized under Rule 27 of the Central Excise Rules, 2002 confirmed to the tune of Rs.5,000/-, otherwise the appeals of the appellants are allowed as discussed here-in-above.
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2011 (1) TMI 1010
Entitlement to avail credit on capital goods without filing the declaration under Rule 57T of Central Excise Rules, 1944 - Held that:- This issue has been answered in the case of ITC Ltd., (2007 (11) TMI 188 - HIGH COURT MADRAS) in favour of the appellant wherein held that Modvat credit should not be disallowed for procedural lapses - order set aside and allow the appeal of the appellant with consequential relief.
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2011 (1) TMI 1009
Valuation - job work - Demand of duty, penalty and interest - assessee discharged the duty liability on the MRP less abatement granted as per provisions - whether a pack of three soaps having individual MRP printed on them, which are secured by a wrapper indicating that three soaps are for sale for MRP of ₹ 24/- are to be assessed accordingly or on MRP of ₹ 12/- indicated on individual pack or not/- Held that:- The case laws cited by the assessee are of no help to him as in the case of CCE, Mumbai Vs. Godrej Soaps Ltd. [2005 (11) TMI 141 - CESTAT, MUMBAI] the issue was not of multiple pack. In the case of Henkal Spic India Ltd. [2009 (11) TMI 574 - CESTAT, CHENNAI] there is a clear finding that the maximum price of individual cake was not visible at the time of clearance of the goods as the same has been deleted from the wrapper. The decision in the case of Godrej Industries Ltd., Vs. CCE, Mumbai (2005 (10) TMI 298 - CESTAT, MUMBAI) is also of no help as in that case also the wrapper of each soap in addition had a MRP clearly struck out with a declaration individual cake not intended for retail sale branded thereto and each wrapper also indicated that the scheme Buy 2, Get 1 Free followed by a pack of 3 (3x75 Gms) MRP ₹ 27/- (inclusive of all taxes).
Thus factual findings of the adjudicating authority in this case, it is find find that the assessee has failed to make out any case. Accordingly the order of adjudicating authority that the assessee has to discharge the duty @ ₹ 36/- for a pack of three soaps less admissible abatement is confirmed. As no allegation of fraud, collusion, willful mis-statement, suppression of facts or contravention of the provisions of law with an intent to evade duty are made out, no penalty is imposable in this case - appeal filed by the Revenue is partly allowed.
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2011 (1) TMI 1008
Cenvat credit - Penalty under section 11C - respondent had issued debit notes to their supplier of inputs on account of rejection of inputs against which they have availed CENVAT credit - Held that:- As the appellant have not challenged the confirmation of demand on the basis of suppression of facts. Therefore, the mandatory penalty under Section 11AC is imposable. As regards the cross-objection filed by the respondent is concerned, the same has not been filed within the time limit prescribed, therefore, the same has to be rejected as such. The Commissioner (Appeals)' order setting aside the penalty under Section 11AC is not sustainable and hence, set aside to the extent.
As regards the contention of the respondent that since they have already paid the entire amount of duty involved in the case before the issuance of the show-cause notice they are liable to pay only 25% of the duty amount as penalty in view of the judgment of the Hon'ble Delhi High Court in the case of K.P. Pouches (P) Ltd. vs. Union of India (2008 (1) TMI 296 - HIGH COURT OF DELHI) - As this judgment of the Hon'ble Delhi High Court and to give option to the respondent was not before the lower authorities case is remanded to the lower adjudicating authority for the limited extent to decide the quantum of penalty under Section 11AC.
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2011 (1) TMI 1006
Interest and penalty - short payment of duty on the clearance made by the respondent without following the Rule 8 of Central Excise Rules, 1944 - liability to pay interest - Held that:- Force in the contention of assessee that the provisions of Section 11AB of the Act came into force with effect from 11.5.2001. Hence, no interest for the period prior to 11.5.2001 is payable by the respondent.
The respondent is liable to pay interest for the period from 11th May 2001 to June, 2001 as per the show-cause notice. As there is no quantification of interest for the impugned period as per the impugned order, the matter is sent back to the adjudicating authority for the purpose of quantification of interest on short payment of duty paid by the respondent during the period 11th May, 2001 to June 01, after following the principle of natural justice.
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2011 (1) TMI 1004
Demand of duty, interest and penalty - extended time of limitation invoked - Duty liability on work in progress goods at the time of final de-bonding order - assessee paid @ 16.48% instead of 34.13% as required under Section 3 (1) (b) (ii) of the Central Excise Act, 1944 - Held that:- It is the duty of the officer, who give no dues certificate to verify the contents whether any dues liability is pending against the assessee or he has correctly declared the true facts for de-bonding of unit. When the concerned officer has de-bonded the unit along with no dues certificate, allegation of suppression cannot be alleged against the respondents in this case - no infirmity with the impugned order, wherein the lower appellate authority has held ‘that facts that how the extended period under Section 11A(1) is invocable in the above circumstances, the demand raised against the respondent is time barred’. order is upheld, the appeal filed by the Revenue is rejected
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2011 (1) TMI 1000
Sale of scrap of old and use capital goods - demand of duty, interest and penalty - Ld. advocate for the appellants submits that the waste and scrap cleared by them is generated from the non-modvatable capital goods procured by them - Held that:- Matter is remanded back to original authority to examine whether waste and scrap cleared by the appellants is a waste and scrap of non-modvatable goods or not. The adjudicating authority, after satisfying by the documents produced by the appellants in support of their defence, shall pass a fresh order.
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2011 (1) TMI 999
Classification - show-cause notice issued by the Range Superintendent to recover differential duty on the products manufactured by the respondent denying the exemption under Notification 52/86 - Held that:- Classification has been approved by the Asst. Commissioner on 20.1.1987 by giving benefit of exemption Notification 52/86 at concessional rate of duty. The said order was not challenged by the department and same has attained finality during impugned period. Later on, the show-cause notice issued for the same period, by the Asst. Commissioner, demanding differential duty is not sustainable in the eyes of law, order confirming the demand for the impugned period for which classification issue has been settled in favour of respondent by giving the benefit under Notification no. 52/86 at concessional rate of duty which has attained finality, is not sustainable. In favour of assessee.
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2011 (1) TMI 998
Cost of drawings and designs - whether includable in the assessable value? - quantification of the cost - Held that:- From the records it is find that it is not coming out what is the cost of drawings and designs and how much is the goods manufactured by the appellants and that the issue was not dealt by the lower authorities in detail. Therefore, the matter needs re-examination for quantification of demand for how much is the value of drawings and designs that is includable in the assessable value - matter remanded back to the original adjudicating authority.
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2011 (1) TMI 997
Cost of moulds and dies used in the manufacturing of the impugned parts - whether not amortized in the assessable value of the parts on their clearances - invoking extended period of limitation alleging suppression - Held that:- It is well settled law that the cost of moulds and dies are to be amortized in the assessable value of the goods cleared by the respondents.
As the challans and invoices on which M/s.Bajaj Auto Ltd., had supplied the moulds and dies to the respondents in free of cost on loan basis was on record during the course of audit before the audit party & when the audit party has not taken any objection for non-inclusion of the amortized cost of moulds and dies in the assessable value by the respondents, allegation of suppression does not survive as held by the lower appellate authority - It is the duty of the audit party to audit the records and to point out the discrepancies found out during the course of audit - Decided in favor of the assessee.
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2011 (1) TMI 995
Assessable value - whether the freight charged by assessee from their buyers in respect of goods sold to the latter during the period from October 2001 to July 2002 is liable to be included in the assessable value of the said goods? - Held that:- The cost of transportation was shown in the invoices issued to the buyers and the same was recovered from them. Further, the duty was paid on the excess freight collected from buyers, which would mean that what was sought to be excluded from the assessable value was the freight shown separately in the invoices issued to the buyers to the extent actually incurred. Such deduction was allowed by this Tribunal in the assessee's own case and that decision stands accepted.
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