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Central Excise - Case Laws
Showing 81 to 100 of 221 Records
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2011 (1) TMI 828
Rebate claim - Export goods through merchant exporter - Government notes, that due to tampring/hiding of the value the Crucial export documents, i.e. shipping bill, commercial Invoice and Bill of lading could not be verified as the same could not be co-related with originally declared/assessed value, thereby leading to not only a question as to whether the exactly same goods (cleared from manufacturer vide impugned ARE-1s) have been exported but also non-verification of the same viz-a-viz marketing prices - The tampering, bidding and any defacement of particulars in Commercial invoice, Shipping Bills & Bill of Lading is not permissible in statutory documents which are essential for claiming the monetary benefit - Such statutory documents having defacements, tampering or erasings cannot be treated as valid documents - Thus, Government is of the considered opinion that the impugned rebate claims as such cannot be held as admissible for being deficient and non-maintainable as per the objections/grounds raised by Respondent Commissioner.
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2011 (1) TMI 827
Demand, interest and penalty - The appellant are manufacturer of plastic master batches chargeable to Central Excise Duty - Their factory premises were visited by the Jurisdictional Central Excise officers, the following irregularities were detected :-(i)shortage of various items of finished goods (ii)shortage of cenvated raw material (iii)excess of semi-finished material rejected master batch (iv)non-payment of duty on clearances of sample - Held that:- though the statement of Shri S.S. Thakur, Manager and Authorised Signatory was recorded twice, he could not give any satisfactory explanation for the shortage of the finished goods and cenvated inputs and clearances of the samples without payment of duty - Also find that Shri S.C. Jain, the Managing Director of the appellant company was summoned thrice but he never appeared before investigating officers - Similarly, there is no satisfactory explanation for the excess quantity in respect of the semi-finished goods - Therefore, decided against the assessee.
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2011 (1) TMI 826
Refund claim for excess Cenvat credit reversed - Limitation - The claim for refund of the extra amount paid in terms of the provisions of Rule 11 (2) of the Cenvat Credit Rules, 2004 is the refund claim for excess Cenvat credit reversed, which is clearly covered by the provisions of Section 11B - There is no dispute that the refund claim has been filed under provisions of Section 11B - In view of this, the same would be covered by the limitation period prescribed under this section and since there is no dispute that the refund claim had been filed after expiry of the prescribed limitation period of one year from the relevant date, the same has been rightly rejected as time barred - Decided against the assessee.
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2011 (1) TMI 820
Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 - Applicant manufacturer of Marbles and Granite filed four rebate claims of duty paid by them on the Granite Slabs cleared from their factory premises for export through merchant exporters under the provisions of Rule 18 of the Central Excise Rules, 2002 - Applicant has failed to comply with the procedural substantive condition on the identity of goods cleared from factory can not be established with those exported and therefore duty paid character of exported goods is not established - As much there is no force in the plea of the applicant that this lapse should be considered on a procedural lapse of technical nature which is condonable in term of case laws cited by applicant - Government, therefore holds that non-preparation of statutory requirement of stipulated ARE-1 and not following the basic procedure of export goods, cannot be treated as just a minor/technical procedural lapse for the purpose of granting rebate of duty on impugned exported goods in this case - Hence, the impugned order-in- appeal is hereby upheld for being legal and proper.
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2011 (1) TMI 819
Valuation - whether the value of packing material supplied free of cost by the buyer is includible in the assessable value of goods - As such the apex court decision in Jauss Polymers Ltd. Vs CCE Meerut [2003 -TMI - 46689 - SUPREME COURT OF INDIA], case is decided in favour of assessee.
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2011 (1) TMI 814
Exemption - Under Notification 21/2004-C.E. (N.T.), dated 6-9-2004 - Govt. observes that rebate/drawback etc. are export-oriented schemes and unduly restricted and technical interpretation of procedure etc. is to be avoided in order not to defeat the very purpose of such schemes which serve as export incentive to boost export and earn foreign exchange and in case the substantive fact of export having been made is not in doubt, a liberal interpretation is to be given in case of any technical breaches - The Apex Court in the Formica India v. Collector of Central Excise,[1995 -TMI - 44012 - SUPREME COURT OF INDIA] in observing that once a view is taken that the party would have been entitled to the benefit of the notification had they met with the requirement of the concerned rule, the proper course was to permit them to do so rather than denying to them the benefit on the technical grounds that the time when they could have done so, had elapsed.
Thus, Govt. observes that the rebate of Countervailing Duty (CVD) paid on inputs/materials used in the manufacture of exported goods is admissible to the applicants under Rule 18 of Central Excise Rules, 2002 read with Notification 21/2004-C.E. (N.T.), dated 6-9-2004 provided no cenvat credit or drawback is availed by the applicants. - Decided in favor of assessee.
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2011 (1) TMI 807
Exemption - notification No. 217/86 upto 15-3-1995 and Notification No. 67/95, dated 16-3-95 thereafter - captive use - DMT Residue - the same was not cleared outside the factory, was used captively as fuel in furnace - Marketability - Appellants contended that although there are catena of judgments to substantiate that the disputed product is not marketable, as mere selling of a commodity does not mean that it is excisable - it was submitted that DMT, a final product, was fully exempt upto 19-3-1990. With effect from 20-3-1990, DMT was chargeable to duty, at the effective rates as above, and was being cleared by the Appellants on payment of duty, which is not in dispute - For the period 20-3-1990 onwards, the Appellants would be eligible for exemption under Notn. 217/86-C.E., dated 2-4-1986 (upto 15-3-1995) and, thereafter, under succeeding Notn. 67/95-C.E., dated 16-3-1995. Notifications for the relevant periods would substantiate that all goods falling under Chapter 38 (where DMT- Residue was classified) were specified as inputs and goods falling under Chapter 29, wherein DMT falls, was specified as final product - Since duty on DMT was paid, exemption to DMT-Residue was undisputedly available to the Appellants, during the disputed period - it is no doubt that DMT-Residue has been used by the appellants in their own factory for generation of steam in boiler for further manufacturing of the final products viz., DMT - Hence, after going through the facts of this case, we hold that the appellants are entitled for the benefit of the above said notifications for the period with effect from 20-3-90 till 2006 - Decided in favour of assessee.
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2011 (1) TMI 806
SSI Exemption - Clubbing of turnover of two or more companies - common storage tank - financial flow back of funds - non-existence of a concrete wall between the two companies - held that:- as both the units are having separate directors, separately registered with Registrar of Companies, separate sales tax registration, income tax, bank account, and separate lease deed with MIDC and are having separate premises also. In that event the clearance of both units cannot be clubbed. SSI - Exemption under Notification 8/2000 and 9/2000 - The appellants has been able to produce the certificate issued by MIDC certifying that the factory of the appellants is located outside the limit of Nagpur Municipal Corporation and comes within the village Digdoh - The Commissioner denied the benefit to the appellants holding that MIDC is a notified area where the factory of the appellants are located is the area notified by MIDC - it is clear that “notified area committee” is used in conjunction with the term municipality - Revenue fails to give the correct interpretation to “municipal corporation” as the municipalities has been defined in part 9 of the Constitution of India which defines municipal area as territorial area of the municipality as notified by the governor - Article 243(g) of the Constitution of India defines the term “village” as a village specified by the Governor by publishing Notification to be village. The terms “municipal corporation”/”village” are having concerns with the Land Revenue Authorities and the same are notified by the Governor from time to time on the basis of census - The “MIDC” cannot be equated with “Municipal Corporation - Thus, the certificate issued by various authorities which certified that the area in which the factory is located is within limit of village Digdoh, Taluka Hingna, district Nagpur - Hence, do not have any hesitation to hold that the factory of the appellants is located in a rural area - Accordingly, the appellants are entitled for the benefit of SSI Notification 8/2000 and 9/2000 - As the appellants are entitled for the benefit of Notification 8/2000 and 9/2000 as SSI Notification, are not required to go into the issue is using the brand name of others, as the appellants succeeded on this ground only.
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2011 (1) TMI 801
Extended Period of Limitation - Penalty u/s 11A of Central Excise Act - Retrospective insertion of an explanation - exemption under Notn.No.68/71-CE dated 29.05.1971 - With effect from 25.11.1978, an Explanation added, providing meaning to 'Flexible' & 'Rigid'. - Notn.No.231/82-CE dated 23.10.1982 was issued exempting Polyethylene films of thickness not exceeding 0.25 mm from levy of duty. - The issue emerges whether the extended period of limitation is invocable for the clearance made by the assessee by claming the exemption under Notification 68/71 dated 29.5.1971 prior to 25.11.1978. - Held that:- extended period of limitation is not invocable in the facts and circumstances of the case.
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2011 (1) TMI 793
CENVAT credit - Rule 2(a) of CENVAT Credit Rules, 2004, - Pumps, electric motors and accessories received as samples - There is no dispute that they were used in the factory of the assessee who manufactures the final products - As such the decision of the Tribunal in Toyota Kirloskar Motor Ltd. Vs CCE Bangalore [2002 -TMI - 51405 - CEGAT, SOUTH ZONAL BENCH, BANGALORE] wherein CENVAT credit was held to be admissible on research and development equipment eventhough it was not used for manufacturing or processing of goods in relation to the final product - Decided in favour of assessee.
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2011 (1) TMI 791
Refund - claim of refund arising in relation to education cess and higher education cess with reference to Notification No. 56/02-C.E. - Revenue states that the issue involved in all these matters relates to the claim by the assessee for refund of the amounts which were paid as Education Cess or Higher Education Cess while availing the benefit in terms of Notification No. 56/02-C.E., dated 14th November 2002 and the factory is situated within the jurisdiction of State of Jammu and Kashmir - Hence, matter is fully covered by the delivered by the Tribunal wherein it has been held that such amount is not refundable to the assessee.
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2011 (1) TMI 782
SSI Exemption - Brand name - The respondent No. 1 M/s. Minimax Industries is a partnership firm of which respondent No. 2 is one of the partners - partnership firm and MEI are being run by the family members - Two brothers are partners in the said partnership firm while the MEI is the sole proprietorship concern of third brother. Both of them have been using the mark “Minimax” for the last number of years, though, the use by MEI may be prior in point of time. However, even that is the history. Initially, all the three brothers were doing the business together, however, later on these two brothers of partnership firm started separate business in the same line using same name i.e. “Minimax”. In these circumstances, it cannot be said that the partnership firm started using the name “Minimax” which belonged to MEI - Admittedly, MEI has not got the brand name/logo “Minimax” registered either under the Registration Act or under the Trade Mark Act or any other Act - It is not a case of the department that the said MEI has allowed the partnership firm to use the said name. The Tribunal has also arrived at a finding of fact that “Minimax” has not acquired any such reputation that it can be associated with “MEI” - Therefore, nothing could be brought on record by the Department to demonstrate or prove that ‘Minimax’ has acquired any brand name or trade name as defined in Explanation IX of the Notification No. 1/93-C.E - Decided in favor of assessee.
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2011 (1) TMI 781
Penalty - Inputs used by assessee is furnace oil which was used for generating electricity, which, in turn, was used for manufacture of dutiable as well as fully exempted finished products - They still took Cenvat credit on the entire quantity of the fuel inputs while in terms of the clear provisions of Rule 6(1) they should have confined the Cenvat credit only to that quantity of fuel inputs which was required for generating electricity required for use in the manufacture of dutiable finished products and the Department was never informed in this regard - Held that:- the respondent are guilty of suppressing the relevant information from the Department and, therefore, the longer limitation period under proviso to Section 11A(1) of Central Excise Rules, 1944 and Rule 57-I(i)(ii) of Central Excise Rules, 1944 has been correctly invoked. For the same reason penalty under Rule 57-I(4) of Central Excise Rules, 1944/ Rule 13 of Cenvat Credit Rules, 2002 readwith Section 11AC of Central Excise Rules, 1944 has also been correctly imposed - Thus, the Revenue’s appeal is allowed.
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2011 (1) TMI 780
Cenvat credit - whether the respondent is eligible to avail Cenvat Credit of the SAD which was not indicated on the invoice when the entire material was transferred to Unit No.2 - Revenue has contested that the credit availed by the Unit No.2 / the respondent herein was not in accordance with Rule 9 of the Cenvat Credit Rules, 2004 - It is on record that subsequent to audit query being raised, the appellant had issued invoice No.262 dt. 10/10/2009 for the entire amount of duty which was taken as credit by Unit No.2 on 28/11/2007 - It can be seen that the Revenue has not disputed the fact that the respondent Unit No.2 is eligible to avail the credit of the SAD which should have been indicated in the invoice, which has not been done so - Held that:- the input invoice was not available at the time of taking credit by the assessee - Decided against the revenue.
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2011 (1) TMI 758
Demand of duty on the basis of documents found in investigation. - Demand of duty on the warehoused goods - Held that:- On account of clandestine removal of the goods without payment of Excise duty and the demand has been confirmed without re-quantification with corroborative documents and during the course of re-quantification, the authority has to correlate the documents. decided against Assessee. Regarding duty on warehoused goods. - held that:- It is the duty of the department to prove that the transporter/warehouse owner had dealt with these goods knowing that the goods were non-duty paid. Department has failed to discharge this onus in this case. Mere allegation that the appellants had aided and abetted is not sufficient. decided in favour of Assessee.
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2011 (1) TMI 757
Production capacity based duty - Abatement - stoppage of production - As regards the stoppage of production from 20/6/98 to 30/6/98 - the plea of the appellant is that the production had been stopped on 20/6/98 due to disconnection of the electricity and this fact has been confirmed by the Assistant Engineer, Electricity Distribution - Since the necessary intimation regarding closure had been given on 21/6/98 alongwith the reading of the electricity meter and since as mentioned above, the requirement of Rule 96 ZO (2) is giving the intimation either prior to the date of closure or on the date of closure and since in this case, the intimation about closure was given only on 21/6/98, while the factory had closed since 20/6/98, the Commissioner has rightly denied the abatement for 20/6/98, which has not been disputed by the Appellant, but the Commissioner's order disallowing abatement for 21st June 1998 is not correct as the intimation regarding stoppage of production had been given to Assistant Commissioner on 21/6/98.
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2011 (1) TMI 755
Application for rectification of mistakes - in the case of Saurashtra Kutch Stock Exchange Ltd. (2008 -TMI - 30682 - SUPREME COURT), non-consideration of a decision of the jurisdictional Court or of the Supreme Court can be said to be a mistake apparent from record needing rectification - Application for rectification of appeal accepted.
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2011 (1) TMI 751
During material period, the appellant was entitled to the benefit of Notification 74/93-CE dated 28.2.1993 in respect of specified goods cleared by them to State Government Corporations or not. - Extended period of Limitation. - Held that:- That decision of this Bench denying the benefit of the above Notification to the appellant in respect of the specified goods cleared to various State Government Corporations was accepted by them, no appeal having been filed against it. Therefore, in the present appeals, the appellant is precluded from claiming the benefit of the above Notification and denying duty liability. decided against Assessee. Regarding extended period of Limiation. - Held that:- It clearly stated that the exemption would be admissible to specified goods cleared from the manufacturing unit of one department to another department of the State Government. The appellant cannot be heard to say that they believed that the benefit would be admissible also to similar goods cleared to Government Corporations. Therefore it will ‘wilful suppression of facts’ decided against Assessee.
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2011 (1) TMI 750
Inspection of the certain documents - During the course of inspection, it was found that out of 219 files (relied upon documents), 123 files were not available for inspection. To that effect the appellant further wrote to the Superintendent (Prev.) vide their letter dated 3-7-2002 with a request for further inspection of the remaining 123 files - there was a specific direction to the department to supply the relied upon documents to the appellants and that order has attained finality and the authorities below are bound to act as per the directions of the order of this Tribunal in the earlier round of litigation - Appeals are allowed by way of remand
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2011 (1) TMI 746
Penalty - Evasion of duty - it is clear from Section 11A after a notice is issued under Section 11AC, the assessee has a right to make a representation contesting the claim - Section 11A(C) makes it clear that the liability to pay the penalty arises on the person who is liable to pay duty as determined under sub-Section 2 of Section 11A - Held that: the determination of liability to pay duty is a condition precedent for imposing penalty - the entire duty and interest was paid voluntarily on being pointed out. It held that no case for imposing the penalty is made out - Decided in favor of the assessee
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