|
Advanced Search Options
Central Excise - Case Laws
Showing 1 to 20 of 115 Records
-
2011 (10) TMI 683
... ...
... ... ..... d, JJ. ORDER The Civil Appeals are dismissed.
-
2011 (10) TMI 650
... ...
... ... ..... submissions, I note that prima facie case for unconditional waiver has been made out as, prima facie, the assessees cannot be said not to have taken all possible precautions to ensure that the goods described in the invoices tallied with the goods received by them invoices describe the goods as MS scrap/MS wires and SCN itself proceeds on the basis that what was received by the assessees were scrap but alleges that the scrap was non-duty paid. 3. I perused the invoices and find that duty paid nature has been brought out therefrom and the assessees, therefore, cannot be faulted if there is any fraud on the part of the suppliers, in the light of Tribunal s order in Transpek Industry Ltd. Vs CCE Vadodara 2010 (249) ELT 91 and the decision of the Hon ble Allahabad High Court in CC Vs CE Meerut Vs Muzaffarnagar Pipe Industries (P) Ltd. I, therefore, grant the prayer for waiver and stay recovery of the amounts in dispute pending the appeal. (Dictated and pronounced in open court)
-
2011 (10) TMI 607
... ...
... ... ..... or pre-deposit as contained in the Stay Order No.796/2011-Ex, dated 1.8.2011. Hence the appeal is dismissed for non-compliance with the statutory requirement of Section 35F of the Central Excise Act, 1944.
-
2011 (10) TMI 598
Waiver of pre-deposit of duty and penalty - demand of differential duty - Export Oriented Unit - Clearance to DTA on stock transfer basis - benefit of Notification No. 2/95, dated 4-1-95 - notification is not applicable to the goods cleared on stock transfer basis as there was no sale involved.
-
2011 (10) TMI 595
... ...
... ... ..... old component, spares and accessories made out of goods specified in sub-clause (i) of the respective chapter to be capital goods, there cannot be denial of the benefits while construing meaning of capital goods under Cenvat Credit Rules, 2004. 2. Ld. DR on the other hand supports the appellate order. 3. Heard both sides and perused the records. 4. The Appellate Authority has not come to the conclusion that the impugned goods were not at all useful to make the impugned capital goods appearing under sub-clause (i) of Rule 2 of Cenvat Credit Rules, 2004 or no way related in this respect. If he had established disintegrity of the respective goods with the main capital goods, Revenue would have succeeded. But that is not the case of Revenue. Accordingly appeal of the appellant is allowed with consequential relief. Since the appeal is disposed, MA (Extension for stay) has become infactuous that is disposed of accordingly. (Dictated and pronounced in the Open Court)
-
2011 (10) TMI 593
Rectification of Mistake - Held that:- The remedy of the Revenue against such an order does not lie in the form of an appeal, but in a writ proceeding under Article 226 of the Constitution - appeal dismissed as being not maintainable.
-
2011 (10) TMI 587
... ...
... ... ..... 3.7.1996. Aggrieved, the revenue preferred an appeal to the Tribunal, which was rejected by the impugned order. A concurrent finding on interpretation of the relevant rules by the Commissioner of Appeals and the Tribunal is that the goods in question are covered by clauses a, b and c of the Explanation-I to Rule 57 Q of the Central Excise Rules, 1944 and that though the amendment to the explanation was by the notification dt. 23.7.1996, ‘capital goods’ were already covered by clauses a to c; steel pipes and tubes fall to be characterized as ‘capital goods’ and are entitled to modvat credit even though they were purchased or incorporated prior to 23.7.1996. On a careful consideration of the orders of the Commissioner of Appeals and the Tribunal, we find no error or perversity in the impugned order warranting interference in this appeal. The appeal is devoid of merits and the same is dismissed, at the stage of admission. There shall however be no costs.
-
2011 (10) TMI 575
... ...
... ... ..... Pvt. Ltd., Mumbai. Applicant has contended that duty paid goods have been exported and all the required documents except disclaimer certificate, are submitted along with rebate claim, so the rebate claim may be sanctioned as submission of disclaimer certificate is not a mandatory requirement. 8. In this regard, government observes that submission of disclaimer certificate from merchant-exporter is mandatory when rebate claim is filed by manufacturer applicant as stipulated in para 8.3 of Chapter 8 of C.B.E.&C. Excise Manual of Supplementary Instructions, 2005. Applicant was given sufficient opportunity to produce the said certificate. Despite this, he failed to submit the same. As such, government finds that rebate claim was rightly rejected. 9. In light of the above discussion, government finds no infirmity in the impugned order-in-appeal, hence upholds the same. 10. Accordingly, revision application is rejected being devoid of merit. 11. So ordered.
-
2011 (10) TMI 574
... ...
... ... ..... eme Court in the case of Triveni Engineering & Industries Ltd. v. CCE - 2000 (120) E.L.T. 273 (S.C.) held that the marketability test requires that the goods as such should be in a position to be taken to the market and sold. Further we find that the Hon’ble Supreme Court in the case of Solid & Correct Engg. Works (supra) relied upon by the Revenue after noticing the fact that the Hot Mix Plant itself is not intended to permanent at a given place and the plant can be moved and indeed is moved after road construction or repair project for which it is set up is complete. In the present case, there is no evidence that the plants in question can be removed as such without dismantling. In these circumstances, prima facie, we find that the applicants have made out a strong case for waiver of pre-deposit. Therefore, pre-deposit of duty, interest and penalties are waived and recovery thereof stayed during the pendency of the appeals. 5. Stay petitions are allowed.
-
2011 (10) TMI 571
Denial of concessional rate of duty under Notification No. 2/95-C.E., dated 1-4-1995 and No. 13/98-C.E., dated 2-6-1998 - appellant has cleared the polyester grey fabrics and polyester twisted yarn - Bar of limitation.
-
2011 (10) TMI 554
Demand and penalty - part of the duty during the course of investigation and paid the balance amount of duty and 25% of total duty amount of proposed demand as penalty within the time limit specified under proviso to Section 11A(2) - Held that:- During the adjudication proceedings, the firm deposited the amount claimed and that the Additional Commissioner returned a finding that the proceedings against the firm stands concluded under proviso to sub-section (2) of Section 11A of the Central Excise Act, 1944 but imposed a penalty of ₹ 2 lacs each individually and separately on the partners of the firm. The said order was set aside by the Commissioner (Appeals) on 20-3-2009. It was held that the Rule 26 of the Rules is a penal provision and not the one under which show cause notice can be issued. Since the show cause notice under Section 11A(1) of the Act had been issued and proceedings stand concluded against firm, therefore, penalty proceedings under Rule 26 of the Rules cannot be continued against partners. The said order was affirmed in appeal by the Tribunal as well vide order dated 5-1-2011.
Once the proceedings against the firm stand concluded, penalty proceedings against partners of the firm cannot continue as Rule 26 of the Rules is not an independent provision but has to be read with Section 11A of the Act. The firm has satisfied the due of the Revenue, therefore, the imposition of penalty under Rule 26 of the Rules are not justified. - Decided against Revenue.
-
2011 (10) TMI 553
Denial of refund claim - Whether the refund of excess debit of credit equal to excise duty paid on spares and components are relevant for the purpose of Section 11B of the Central Excise Act, 1944 - Held that:- Claim for refund of duty can be made in terms of Section 11B of the Central Excise Act, 1944. By that provision, any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise before the expiry of six months from the relevant date in such form and manner as may be prescribed. The application shall be accompanied by such documentary or other evidence including the documents referred to in Section 12A as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from or paid by him and the incidence of such duty had not been passed on by him to any other person.
The claim for refund would arise only if the incidence of duty had not been passed on. As the onus is on the assessee to prove that the incidence of duty had not been passed on to the customers, the question of claim of refund could not be entertained. For that reason, both the Commissioner of Central Excise (Appeals) and the CESTAT came to the conclusion that the application under Section 11B is to be rejected and they rightly rejected the application. The finding of the Commissioner of Central Excise (Appeals) that in view of the fact that the assessee was unable to prove that the duty incidence had not been passed on, he ordered the sanction of the claim and consequently credited the same to the Consumer Welfare Fund. This finding of the Appellate Authority was confirmed by the CESTAT. As the assessee has not established the right to refund of claim in terms of Section 11B, the substantial questions of law raised by the assessee require no consideration and for that reason, the appeal must fail. Decided against assessee.
-
2011 (10) TMI 552
Classification of goods - Availment of CENVAT Credit - violation of Rules 57A, 57AA and 57AB of Central Excise Rules, 1944 - Held that:- commissioner has rightly found that the classification of the manufacturing goods cannot be gone into by the adjudicating authority as such classification falls within the exclusive domain of the authority with whose jurisdiction, the supplier is situated. There is no dispute that the supplier has paid the duty at the rate of 16% in terms of classification under Chapter Heading 5801.31, though, another supplier supplied the goods under Chapter Heading 5801.32. Since the excise duty was paid by the supplier in bona fide understanding of the classification and thus it is a duty paid under Clause (1) of Rule 57AB of the Rules and the assessee has rightly availed Cenvat credit. No substantial question of law arises - Decided against Revenue.
-
2011 (10) TMI 543
... ...
... ... ..... e to those statements. The Commissioner (Appeals) and the CESTAT were absolutely correct in their ultimate finding that no action could be taken on the basis of such uncorroborated evidence. 9. It is also a matter of record that the appellant has not produced a single invoice/bill evidencing purchase of raw materials and manufacture and sale of such branded biri without payment of duty. 10. In the absence of any such materials, it cannot be said that the Commissioner (Appeals) was not justified in setting aside the order passed by the assessing authority. The matter was independently considered by the CESTAT, in its capacity as the final authority on facts. The CESTAT after giving its own reasons concurred with the order passed by the Commissioner (Appeals). We do not find any reason to take a different view in the matter. 11. In the result, the substantial question of law is decided against the appellant. The Civil Miscellaneous Appeal is dismissed. No costs.
-
2011 (10) TMI 542
... ...
... ... ..... s a bar for utilisation of credit accrued after the last date of the month for payment of duty in respect of the clearances relating to the month. By that rule, the assessee is not entitled to utilisation of the subsequently accrued Cenvat credit for the payment of earlier months default. Admittedly, the assessee has made such a claim. As the issue is covered under the provisions of Rule 8(3A) for the non-compliance of sub-rule (4) of Rule 3 of the Cenvat Credit Rules, the application of the judgment of the Bombay High Court is totally misconceived. The CESTAT has not noticed the subsequent amendment of the Rules in the year 2002, whereas the judgment of the Bombay High Court was rendered on the basis of Rule 49(e)(i) and (ii) as it stood in the year 2000. For the above reasons, the order of CESTAT dated 21-10-2010 is set aside. The civil miscellaneous appeal is allowed by answering the substantial questions of law in favour of the Revenue and against the assessee. No costs.
-
2011 (10) TMI 541
Duty demand - Raw materials imported free of duty - Confiscation of goods - Imposition of redemption of fine - Held that:- when the goods are released provisionally on execution of bond, confiscation can be affected even if the goods are not available. The natural conclusion is that the goods should have been released on bond which would mean that the goods have been taken possession of by way of seizure and subsequently released on execution of bond. Admittedly that is not the situation in this case also. In this case, respondents themselves have diverted the goods and after diversion, proceedings have been initiated. There is no seizure of the diverted goods and release of the same provisionally on execution of bond.
Further, the confiscation always presumes availability of goods and presumption normally is that goods have been seized and thereafter the proceedings would culminate into confiscation or release. Confiscation would mean that seized goods become the property of the Government and the party to whom it is ordered to be released on payment of fine, will have to pay fine and redeem the goods. When the goods have been diverted and not released on execution of bond with conditions, the question of confiscation of the same does not arise since goods have already become someone else’s property - Decided against Revenue.
-
2011 (10) TMI 540
Rectification of mistake - Held that:- claim of the respondent/assessee that at the time of availment they had the original copy of bill of entry is not acceptable. The original adjudicating authority has already observed that the requirement of submission of documents with the returns has been discontinued and therefore the responsibility to take credit on the basis of proper document is on the assessee and to show that it has been taken so is also on the assessee. Therefore the suppression of fact has been correctly invoked and the observations even though have not directly discussed limitation, the discussions are sufficient to show that the decision would not have been different if these aspects were considered separately and discussed. Therefore the order does not require modification as far as this aspect is concerned - Rectification denied.
If the Cenvat credit amount demanded, interest thereon is paid with 25% of Cenvat credit demanded towards penalty within thirty days of the receipt of this order, the assessee shall not be required to pay the balance 75% of the penalty. It is made clear that if duty and interest and penalty to the extent of 25% of duty is not paid within thirty days of the receipt of this order, the assessee shall be required to pay the Cenvat credit amount demanded, interest thereon and penalty equal to Cenvat credit amount demanded by the original adjudicating authority.
-
2011 (10) TMI 539
Penalty u/s 11AC - Reversal of CENVAT Credit - Held that:- it becomes quite clear that assessee found out wrong availment of credit on their own and reversed it in August 2006 and when audit party pointed out excess availment of credit in 2008 once again reversed the same apparently forgetting the fact that the amount already had been reversed. The very fact that appellant had reversed the credit by themselves which was wrongly utilized by them would show that there was no intention to evade payment of duty by suppressing facts or resorting to misdeclaration. Further, prompt reversal of the amount and payment of interest in December 2008 would support the view that appellants did not have any intention to evade duty. Under these circumstances I do not consider that imposition of penalty in this case is warranted. Accordingly, the impugned order as regards penalty under Section 11AC is set aside - Decided in favour of assessee.
-
2011 (10) TMI 538
Confiscation of goods - Redemption fine - Absence of Condition u/s 11AC - Difference of opinion - Majority order - whether the order of confiscation of the impugned car is justified and, therefore, the imposition of redemption fine and penalty on the appellant is correct or not in the facts and circumstances of the case - Held that:- assembly of cars from various components brings into existence an excisable item, namely the car, which is distinct or different from the parts from which it is assembled. Therefore, the assembly of car from the component parts amounts to manufacture under Section 2(f) of the Central Excise of the Act and excise duty is liable to be charged on such assembly. There is no dispute on this point that the activity of assembling of the car by the appellant amounts to manufacture. Once a manufacturing activity is undertaken for manufacture of excisable goods, the manufacturer is required to obtain a licence from the Central Excise department under Rule 174 of the Central Excise Rules and if any manufacturing activity is undertaken without a licence from the department, there is a contravention of the Central Excise Rules and the excisable goods so manufactured are liable for confiscation under Ruled 173Q(1)(c).
This is also a fact that Section 11AC was not in existence at the time of this manufacturing activity undertaken by the appellant. Therefore, the absence of the condition of Section 11AC will not have any effect on the confiscation of the goods in this case - order of confiscation of the impugned cars and the consequential imposition of redemption fine and penalty is upheld - Decided against assessee.
-
2011 (10) TMI 537
Stay of recovery of duty - Demand of differential duty - Held that:- every assessment is a separate assessment, and they have paid the duty on the transaction value of the goods cleared for home consumption. The applicant is able to make out the prima facie case in their favour. In these circumstances, pre-deposit of duty and penalty is waived and recovery of the same is stayed during pendency of the appeal - Stay granted.
........
|
