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Central Excise - Case Laws
Showing 61 to 80 of 221 Records
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2011 (1) TMI 994
Condonation of delay - Period of limitation - Held that:- From the records, it is clear that the appellants had filed the appeal before the Commissioner (Appeals) with a delay of 23 days i.e. well within the period of 90 days of the impugned order. In that view, the delay in filing the appeal before the Commissioner (Appeals) condoned and in the interest of justice, the matter is sent back to the lower appellate authority to pass an appropriate order on merits after hearing the appellants by giving them a reasonable opportunity to defend their case. As the appellants have already paid the duty and interest involved in this case, the waiver of penalty is granted.
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2011 (1) TMI 993
Stay application - waiver of pre-deposit - appellants have opted for provisional assessments - without hearing the appellants, the final assessments were made holding that the appellants have failed to produce the duly certified certificate of their assessable value by the Chartered Accountant - appeal was rejected holding that the appellants have failed to comply with the condition of Section 35F of the Central Excise Act, 1944 - Held that:- No notice was given to the appellants to produce the required documents to finalize the assessments and it is alleged that the appellants have failed to produce the Chartered Accountant's certificate, which has no merits, order set aside and matter remanded back to the original adjudicating authority to re-adjudicate the case after giving a reasonable opportunity to the appellants to produce the required documents, appeal is allowed by way of remand.
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2011 (1) TMI 992
Undervaluation of processed fabrics by suppressing the actual value of the grey fabrics with intention to reduce the assessable value of the fabrics processed and finished, thereby evading duty - Duty demand, interest and penalty of equivalent amount - Held that:- In the case of Lajya Dyeing & Bleaching Works (2008 (2) TMI 41 - SUPREME COURT) held that for the misdeclaration of the merchant manufacturers extended period is not invocable in the absence of allegation or finding that assessee job worker knew or deliberately failed to declare the correct cost of grey fabrics and there is no legal requirement for the processors to verify the correctness of the declaration furnished by the owners, in the absence of evidence showing misdeclaration of value by the respondent processor in connivance with the supplier, the job worker/processor cannot be saddled with the demand on the ground that the value declared by them was low. The ratio of these judgements squarely apply to the facts of the present case, order of the lower appellate authority set aside and allow the appeal of assessee.
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2011 (1) TMI 991
Clubbing of factory - SCN issued alleging that the units I & II of Malu Paper Mills Ltd., should be treated as one manufacturing unit and clearances of paper of both the units should be taken into consideration for calculating the total quantity exemption of 3500 MT under Notification No.3/2001 and demanding Central Excise duty and also proposing to impose penalty and also demanding interest on the duty payable - Held that:- As decided in Rollatainers Ltd. [2004 (7) TMI 92 - SUPREME COURT OF INDIA] two factories in the same premises owned by the same owner with common balance sheet would be eligible for exemption under Notification No.6/2000-CE separately as they are registered separately with the Central Excise department. The said exemption which was the predecessor to notification No.3/2001 pertained to paper and paper board if the aggregate clearance from a factory in a financial year did not exceed 3500 MT, which is also the position in the case before us. Also see Amaravathi S V Paper Mills Ltd. [2010 (7) TMI 172 - SUPREME COURT].
Thus Unit No.I & II of Malu Paper Mills Ltd., are separate factories and each one of them is entitled for separate exemption under Notification No.3/2001-CE dated 01/03/2001. In favour of assessee.
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2011 (1) TMI 990
Classification - AD/DC drives - show-cause notice was issued to classify the product under Chapter Heading 85.37 and 85.43 attracting duty @ 20% and 25% respectively as against Chapter Heading 85.04 attracting Central Excise duty @ 5% as per assessee - maintainability of appeal filed by the Revenue before the Commissioner (Appeals) - Held that:- As in this case, the Asst. Commissioner was not the adjudicating authority, who has filed the appeal before the Commissioner (Appeals) and the Commissioner (Appeals) has not dealt the same in accordance to law. Hence, the appeal filed by the Revenue before the Commissioner (Appeals) is not maintainable, following the decision of Maza Cosmetics (2006 (8) TMI 65 - HIGH COURT , DELHI) and Silver Streak Welding Products India Pvt Ltd., (2007 (9) TMI 222 - HIGH COURT BOMBAY).
Regarding denial of refund claim - the refund claim has been denied on the presumption that the buyer might have taken credit - Held that:- In this case the credit is not available to the buyers on capital goods and if any of the buyer has taken credit of this capital goods, then the liability to recover the amount wrongly availed credit is of the buyers and not of the supplier - in this case, the verification has not been done by the adjudicating authority properly and they have done only on random basis - Decided in favor of the assessee by way of remand
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2011 (1) TMI 989
Remand proceedings - contentions of the department that the Commissioner (Appeals) had not considered the documents relied upon by the department as well as 9 decisions in support of clandestine removal - Held that:- The Commissioner (Appeals) has discussed in detail each document and came to the conclusion that demand is sustainable only in some cases whereas demand is not sustainable in other cases. He has also discussed each case law referred to by the department. Therefore no infirmity in the order passed by the Commissioner (Appeals) with regard to confirmation of demand of duty amount.
Since the Commissioner (Appeals) has upheld duty demand on account of clandestine removal equal amount of penalty is also leviable under Section 11AC of the Central Excise Act and interest also payable under Section 11AB of the Act. The appeal is partly allowed.
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2011 (1) TMI 988
Pre-deposit - Commissioner (Appeals) has directed the appellants to make pre-deposit of 100% of duty demand without going into the merits of the case - Held that:- As no reason has been given in the order for directing the appellants to make pre-deposit of 100% of the duty demand, order set aside and stay entire demand and remand the matter back to the Commissioner (Appeals) to decide the issue afresh on merits after giving a reasonable opportunity of hearing to the appellants without insisting on the pre-deposit. Stay applications are also disposed of in the above manner.
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2011 (1) TMI 987
Waiver of pre-deposit - Reversal of cenvat credit - not maintaining separate account of inputs / input service which have gone to manufacture of dutiable as well as non-dutiable final products - Held that:- Considering amendment inserted through Section 73 of the Finance Act, 2010 the CENVAT Credit Rules, 2004 appellants are required to reverse only the amount of inputs / input service availed by them which has gone in manufacturing of the exempted goods. It would be in the interest of justice to remand the matters back to the original adjudicating authority to requantify the demand accordingly, and to give the benefit of the amendment made in the Finance Act, 2010 to the appellants, Appeals are allowed by way of remand and the stay applications are disposed of in the above manner.
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2011 (1) TMI 980
Abatement in respect of sales tax payable in the state of West Bengal - Commissioner allowed the claim - contention of Revenue is that the abatement is in respect of actually paid sales tax - Held that:- Liability of goods to sale tax is not being doubted. The state allowed sales tax collected to be retained by the manufacturer as incentive. This does not change the character of amount collected. There is a West Bengal incentive scheme which allows the sales tax collected is to be retained by the manufacturer. In view of this, no infirmity in the impugned order. The appeal is dismissed
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2011 (1) TMI 979
Classification - steel tables - Show Cause Notice was issued by invoking extended period demanding duty after classifying the steel tables under chapter 73 of the Tariff and subsequently when it was found that the appropriate classification under chapter 94 of the Tariff corrigendum to the Show Cause Notice was issued - Held that:- As the present respondent had not filed any declaration or classification list claiming the classification of goods under chapter 73 of the Tariff. It is only the opinion of the Revenue in the first Show Cause Notice that the goods were classifiable under chapter 73 which were subsequently corrected by issuing a corrigendum. Therefore no merit in the contention of the present respondent that the classification under corrigendum is prospective in nature. The findings of the Commissioner(Appeals) in this regard are not sustainable hence set aside.
Merit in the contention of the Revenue that the steel tables supplied to the education department are rightly classifiable under chapter 94 of the Tariff. The findings of the Commissioner(Appeals) in this regard are not sustainable hence set aside.
Appellant has produced evidence regarding purchase of the items in question from other units and in respect of payments made to the suppliers. The Commissioner(Appeals) further held that proprietors of M/s.Dulax Steel and M/s.Radha Steel are relations of the present respondent but there is no mutuality of interest and flow back of consideration to the respondents is established. In the present appeal also this finding regarding mutuality of interest is not under challenge. Revenue is only relying upon the letter written to the education department. In absence of any other evidence no infirmity in the impugned order in this regard. If the clearance of bought out items are excluded from the clearance from the respondents regarding manufactured goods the respondents are well within the S.S.I. exemption therefore no infirmity in the impugned order in this regard. Appeal is disposed of as indicated above.
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2011 (1) TMI 931
Demand of duty - matter was re-adjudicated against the appellant - appeal of the appellant before this Tribunal - original adjudicating authority to re-determine the assessable value as per CAS-4 and other issues arising in the appeal, Tribunal in Appeal, which was disposed off by order, in view of the earlier order in the matter passed by this Tribunal With these observations, the appeal is disposed of.
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2011 (1) TMI 924
Whether the Tribunal is legally correct in restoring the appeal of the respondent to its original number beyond six months - contention raised on behalf of the appellant is that the Tribunal could not have restored the appeal after expiry of six month from the date of dismissal of the appeal for non-prosecution. In the impugned order no such objection appears to have been raised on behalf of the appellant before the Tribunal in absence of which the plea cannot be raised for the first time before this Court, appellant is unable to give the date on which the application was filed and the date on which the fact of dismissal of appeal for non-prosecution came to the notice of the assessee. Since huge amount was involved, the Tribunal having been satisfied about the bona fides for the non-appearance of the assessee, there is no ground to interfere. No substantial question of law arises, the appeal is dismissed.
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2011 (1) TMI 893
Settlement Commission - grant of immunity from fine penalty and prosecution - Assessee knowingly avails wrongs Cenvat Credit on Inputs - Held That - Assessee co-operated in the proceedings of settlement and had also paid the amount of duty along with interest. Some leniency was given and penalty exceeding 2,50,000 was waived.
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2011 (1) TMI 860
Waiver of pre-deposit - utilization of inputs - the inputs in question are Medium carbon steel strapping, strapping seals, welding electrodes, angles, plate mill plate, concast billet etc. The appellant had tried to give an explanation for the consumption of these items in his factory premises. Ld. Adjudicating Authority while holding against the appellant in respect of most of the items - Appeal is allowed by way of remand.
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2011 (1) TMI 859
Exemption under Notification No.50/03-CE - Who is required to file the declaration to claim area based exemption - Held that:- in terms of the agreement between M/s. Gillete and M/s. MJ, it is the M/s.Gillete, who is the actual manufacturer, even if the department's allegation is accepted and M/s. MJ is treated as an agent of M/s. Gillete, since any action of an agent is to be treated as the action of the principal and since in this case, it is not disputed that the required declaration had been filed by M/s. MJ, the same will have to be treated as the declaration filed by M/s. Gillete. In view of this, even if the department's allegation that the relationship between M/s. Gillete and M/s. MJ is that of master and servant, is accepted, the exemption under notification no.50/03 can not be denied. - Decided in favour of assessee.
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2011 (1) TMI 851
Demand Department alleged that appellant directly supply the various bought out items to other party and accordingly demanded for duty was confirmed - As per the judgment of the Hon'ble Supreme Court in the case of MIL India Ltd. Vs. CCE, Nodia [2007 -TMI - 1196 - SUPREME COURT OF INDIA] the powers to remand the matter back to the Adjudicating Authority no longer vests with the Commissioner (A) - Therefore, appeal is allowed by way of remand to Commissioner (Appeals).
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2011 (1) TMI 850
Demand of interest - Inputs used in the manufacture and clearance of both exempted and dutiable final products without maintaining separate accounts - found to have been taken as credit of Service Tax paid on input services exclusively used in the manufacture of exempted products paid by the appellant - The appellant has submitted that the said amount remained as an entry in the cenvat account and the same was not utilized - Therefore, no liability to interest as ordered by the Adjudicating Authority arose in respect of the disputed credit - Find that this aspect is covered in favour of the assessee by the judgment of the Hon'ble High Court of Punjab and Haryana in the case of Ind Swift Laboratories Ltd. Vs. UOI - [2009 -TMI - 34688 - PUNJAB & HARYANA HIGH COURT ]- However, the above relief would be admissible subject to verification of the claim of the appellants that the impugned amount remained as an entry in their cenvat account and was not utilized - Decided in favour of assessee.
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2011 (1) TMI 843
CENVAT credit has been denied on the ground that the documents on the strength of which credit was taken were furnished in the name of the head office - Assessees submit that they had furnished copies of certificates showing that the services had been carried out pertaining to the unit under consideration, since such documents, even if provided to the authorities below, have not been considered - Therefore, setting aside the impugned order and remitting the case for fresh decision to the adjudicating authority - The appeal is thus allowed by way of remand.
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2011 (1) TMI 837
Cenvat Credit - inputs used in production of exempted as well as dutiable product - Appellant has reversed the entire amount attributable to the credit taken which were utilized in exempted products. He also brings to our notice that the fact that the appellant has not utilized the amount which were sought to be reversed by the Department. He specifically takes us through the findings of Adjudicating Authority which has been upheld by the ld. Commissioner(Appeals). He would also brings to our notice the judgment of the Hon'ble High Court of Ind-Swift Laboratories Ltd. Vs. UOI [2009 -TMI - 34688 - PUNJAB & HARYANA HIGH COURT] - Decided in favour of assessee.
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2011 (1) TMI 835
Export of goods - Claim of rebate under rule 18 - export obligation under DFIA -exemption under Notification No. 40/2006-Cus., dated 1-5-06 - Notification No. 17/2009 dated 19-2-09 amended Notification No. 40/2006, dated 1-5-06 by omitting the following phrase of Condition (v) and in respect of which facility under Rule 18 (rebate of duty paid on materials used in the manufacture of resultant products) or sub-rule (2) of Rule 19 of the Central Excise Rules, 2002 or CENVAT credit under CENVAT Credit Rules, 2004 in respect of materials imported/procured against the said authorization has not been availed.- held that:- Government observes that rebate of duty paid on final products exported under DFIA Schemes is admissible as Notification in question has been amended retrospectively from the date of issue vide Section 93 of Finance (No. 2) Act, 2009 - rebate / refund to be allowed.
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