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Central Excise - Case Laws
Showing 21 to 40 of 115 Records
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2011 (10) TMI 536 - CESTAT BANGALORE
Waiver of pre-deposit - Held that:- we have found prima facie case for the appellant. Apparently, they did not intentionally manufacture zinc dross. When tower parts were dipped in molten zinc, they became galvanized through coating of zinc. In this process, a part of molten zinc got in contact with air at high temperature and got oxidized. When the oxidized material was cooled to the room temperature, it became what is called ‘zinc dross’. In the light of the decisions cited by learned counsel, this material prima facie cannot be considered to have been ‘manufactured’ by the appellant. Though the appellant concedes that it is a marketable commodity, they appear to have a valid point in their submission that it is not a ‘manufactured’ product. Hence there will be waiver of pre-deposit and stay of recovery in respect of the duty of excise demanded on the said commodity and also in respect of the penalty imposed on the appellant - Stay granted.
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2011 (10) TMI 535 - CESTAT AHMEDABAD
Reversal of CENAVT Credit - Whether the appellants are required to reverse Cenvat credit of Rs. 5,53,466/- involved on the inputs and raw materials contained in the finished products destroyed due to fire - Held that:- Nevertheless a reading of sub-rule (5C) of Rule 3 of Cenvat Credit Rules, 2004 would show that when the demand of duty is ordered to be remitted under Rule 21 of Central Excise Rules, 2002, Cenvat credit is required to be reversed - Since the application for remission has already been rejected, the appellant would be required to pay duty on the goods which were destroyed in fire. If duty is payable on the finished goods, Cenvat credit would be admissible. Therefore demand for Cenvat credit cannot be sustained - remission application being considered at a future date also, appellants would be required to reverse credit after a decision is taken - Decided in favour of assessee.
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2011 (10) TMI 534 - CESTAT AHMEDABAD
Refund of Central Excise Duty - Goods destroyed by fire - Appellant had made a claim to insurance company on the goods destroyed and the claim included the Cenvat credit also - Held that:- Cenvat Credit Rule requires the assessee to reverse the Cenvat credit taken on the inputs contained in the finished products only and there is no specific provision to say that the amount should not have been claimed from the insurance company. In the absence of any specific provisions in the rules, the ld. Commissioner has erred in observing that the company can be deemed to have utilized the amount from insurance company for payment of duty of other final products. It is to be noted that even if the goods are destroyed, the appellants would have lost the entire value of the goods which would include raw materials, used labour and overheads for manufacture etc. Further the Cenvat credit is available to the appellants, once the raw materials are used. In such a situation, if such Cenvat credit is required to be reversed and if appellant receives compensation from the insurance company, it cannot be said to be unjust enrichment or cannot be said to amount to utilization of the amount for payment of duty of other final products. The loss of duty liability on the raw materials used has only been compensated by the insurance company on the basis of premium paid. In the absence of specific provisions in the statute, we cannot go into the question of intention or the deemed situation to deprive the benefit - Decided in favour of assessee.
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2011 (10) TMI 533 - CESTAT BANGALORE
Waiver of pre deposit - Denial of CENVAT Credit - Held that:- Prima facie, this was not the dispute which arose between the assessee and the Revenue in the instant case. It is not in dispute that, during the period of dispute, the assessee cleared a part of their production on payment of duty for export and subsequently claimed drawback. Another part of their production was cleared to the DTA by availing full exemption from payment of duty in terms of Notification No. 29/2004-C.E., dated 9-7-2004 as amended by Notification No. 58/2008-C.E., dated 7-12-2008. It is, again, not in dispute that the same capital goods were used for the manufacture of the goods exported and those cleared to the DTA. No provision of Cenvat Credit Rules, 2004 required the assessee to maintain separate accounts of any sort for the purpose of claiming Cenvat credit on the capital goods. On the other hand, Rule 6(4) only forbade availment of Cenvat credit on the capital goods exclusively used for the manufacture of exempted goods. This rule, in any case, did not arise before the Board for clarification - Prima facie, capital goods used for manufacture of both dutiable and exempted products are not covered by Rule 6(4) of the Cenvat Credit Rules, 2004 and hence Cenvat credit can be claimed thereon - Stay granted.
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2011 (10) TMI 532 - CESTAT AHMEDABAD
Denial of refund claim - Double payment made by mistake - Mistake notices after 2 years of payment - Held that:- whether the payment is due to accounting error or whatever may be the reason, the debit entry in the accounts is only towards the payment of duty and therefore, refund of any amount which is debited in the accounts has to be treated as refund of duty only - amount paid for the second time, is only a deposit and cannot be considered as duty, cannot be sustained - Following decision of BDH Industries v. CC(A), Mumbai [2008 (7) TMI 78 - CESTAT MUMBAI] - Decided against assessee.
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2011 (10) TMI 531 - CESTAT CHENNAI
Demand of Differential duty - increase in the value as per supplementary invoices - Held that:- Department has made enquiries with the Railways and arrived at the freight amount and included the same to arrive at the landed cost of inserts for the purpose of determining the assessable value of sleepers. This stand of the Department is supported by the decision of the Hon’ble Supreme Court in the case of Ujagar Prints & Others v. UOI [1988 (11) TMI 106 - SUPREME COURT OF INDIA], by which it has been held that the value of materials supplied in respect of goods manufactured on job work should be intrinsic value of the material so received for job work. Therefore the freight incurred for transporting the raw materials to the premises of the appellant stands correctly included for determining the duty amount - Decided against assessee.
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2011 (10) TMI 530 - CESTAT CHENNAI
EOUs/EHTP/STP Units - clearance of goods to DTA - Held that:- Goods exported namely Bearing Housing Assembly is not similar to goods cleared in the DTA namely Turbine Wheels. Similar goods are goods which although not alike in all respects have like characteristics and like component material which enable them to perform the same function and make them commercially interchangeable. Similar goods are also expected to have similar quality, reputation and trademark. Prima facie, we find that Bearing Housing Assembly and Turbine Wheels have different characteristics; different functions and they are not commercially interchangeable. The appellants have not demonstrated before us any similarity between these two products besides blankly stating that both are components of Turbo chargers - appellants have not made out a prima facie case for complete waiver of the pre-deposit - Conditional stay granted.
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2011 (10) TMI 529 - CESTAT NEW DELHI
Penalty under Rules 9(2), 173Q and 226 of Central Excise Rules, 1944 - Held that:- The Appellate Authority mechanically confirmed the adjudication order without looking the reason why a composite penalty of Rs. 1 lakh was imposable under three different Rules. Rule 9(2) operates on its own field in respect of certain offence listed therein. Rule 173Q has its own area of operation. Similarly Rule 226 of Central Excise Rules, 1944 is a distinct rule by the nature of default prescribed therein Different circumstances are prescribed by three different rules for levy of penalty. There is no composite provision apparent by reading of all the three distinct rules which were prevalent at the material time. In absence of any composite prescription of levy of penalty, reason also being absent for invoking the respective rule and whether ingredients of those rules were present not being brought out by the orders of authorities below, it is difficult to approve their action. Cogent evidence in respect of contravention of each such rule is also neither present nor spoken by the order. Therefore, the appellate order can only be said to be cryptic without being reasoned and self speaking. Such order does not stand to reason - Decided in favour of assessee.
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2011 (10) TMI 528 - CESTAT NEW DELHI
Improper availment of Cenvat credit - Penalty - First appellate authority held that adjudicating authority in effect did not find availment of Cenvat Credit erroneous under law. For such reason when he was of the firm view that there was no contravention of Rule 9 and Cenvat Credit Rules, 2004, imposition of penalty was undesirable - Held that:- Before the appellate order could see the light of the day. Show Cause Notice was issued for review on 22-1-2009. This is an essence in conflict with law because it appears that the reviewing Commissioner without any regard to the first appellate order passed made review although the same Commissioner who was Appellate Authority acted as a reviewing authority without looking to his own decision in para 6 of the order dated 6-2-2008 and again reversed his decision by a review in terms of order dated 5-10-2009 to disallow Cenvat credit while dropping the penalty. Such an action of the authority shakes public confidence and results in public mischief - Decided in favour of assessee.
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2011 (10) TMI 449 - CESTAT, MUMBAI
SSI exemption - simultaneous availment of SSI exemption on their own products and payment of full rate of duty in respect of goods manufactured on loan licence basis - clubbing of clearance - held that:- the appellant has availed both the facilities i.e. full exemption on Rs. 30 lakhs on the goods cleared by them on their own behalf and availing Modvat facility or payment of full duty in respect of the clearances made on behalf of M/s. Pharma Links is contrary to the provisions of these Notifications and, therefore, the demand has rightly been made by the department.
The value of the clearances made by the appellant on behalf of M/s. Pharma Links are to be clubbed for the purpose of paying duty under these Notifications. - the appellants have the option to pay duty/avail Modvat facility or avail the duty free clearances in respect of the Notifications and they cannot avail both the facilities
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2011 (10) TMI 445 - BOMBAY HIGH COURT
Waiver of pre-deposit - Tribunal directed to pre-deposit Rs. 2.11 Crores as against demand of Rs. 2.21 Crores and equivalent penalty - held that:- it would not be appropriate for this Court to make any final determination of the submissions raised including on the question of jurisdiction since these are matters which must be considered by the Tribunal at the stage of the hearing of the appeals. Having regard to the facts and circumstances of the case, we are of the view that the ends of justice could be met if the order of the Tribunal is modified so as to direct the assessee to deposit an amount of Rs. 75 lacs before the Tribunal within a period of four weeks from today.
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2011 (10) TMI 444 - ALLAHABAD HIGH COURT
Stay of demand - commissioner (appeals) granted 50% stay - writ petition for 100% stay - loan licensees being manufactures - held that:- The Commissioner (Appeals) therefore, cannot be said to have committed an error in the facts of the present case, while recording a finding that the loan licensee were only performing job work for the assessee.
The judgment in the case of Pawan Biscuit Company (2000 -TMI - 45451 - SUPREME COURT OF INDIA) does not lay down any binding legal precedent, which the Commissioner (Appeals) can be said to have ignored while considering the impact of the order of the Tribunal passed in respect of the assessee for the previous years, specifically in the circumstance when the issue which was considered in the interim order of the Tribunal qua previous year proceedings was entirely on different ground vis-a-vis the one, which had been canvassed before the Commissioner (Appeals) at the time of consideration of the application under Section 35F of the Central Excise Act giving rise to this petition.
However, order of predeposit modified as, Assessee may deposit Rs. 20 lacs in cash within one month from today and for the remaining amount in terms of the order of the Commissioner (Appeals), he may furnish security other than cash or bank guarantee to the satisfaction of the Commissioner (Appeals) within the same period.
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2011 (10) TMI 442 - GUJARAT HIGH COURT
Waiver of pre-deposit - Clandestine removal of finished goods under the sale invoices of two units, namely, M/s. Fenil Control Gears and M/s. EXEC - Petitioner is a partnership firm, which is engaged in the manufacturing and selling of flame proof and weather proof electrical equipments is located at Silvasa - Learned counsel Mr. Mishra appearing for the petitioner fervently argued before this Court that there was acute financial hardship suffered by the petitioner firm - It has been all along emphasized from Counsel of the Revenue that Tribunal while considering the request of petitioner to forgo direction of pre-deposit pending the appeal has scrupulously considered these two requirements - In this premise, request made by the petitioner in the present petition for dispensing with the condition of pre-deposit of duty of Rs. 65.00 Lakhs as directed by the Tribunal in his impugned order is not found sustainable and therefore cannot be acceded to - Petition is dismissed
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2011 (10) TMI 441 - CESTAT, NEW DELHI
Cenvat credit - Whether the welding electrodes used for repair and maintenance and fabrication of machinery and parts of machinery, joining of the pipes and also the paints and thinners used on the machinery to protect it from rust as well as from heat, are eligible for Cenvat credit or not - the paint is specifically covered by the definition of input, as given in Rule 2(k) of the Cenvat Credit Rules, 2004, the same would be eligible for Cenvat credit As regards the use of welding electrodes used for fabrication of the machinery or its parts, in that case the welding electrodes would be covered by the definition of input as given in Rule 2(k), of Cenvat Credit Rules, 2004 - Appeals are allowed
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2011 (10) TMI 440 - BOMBAY HIGH COURT
Application for waiver of pre-deposit - CESTAT had before it a batch of matters in which the allegation is that the assessees, who manufacture and sell M.S. ingots, had clandestinely cleared manufactured goods by suppressing the actual production - Ordinarily in a matter such as the present, a Division Bench of this Court would be inclined to follow the view taken by a co-ordinate Bench particularly at the interim stage on an application for waiver of pre-deposit - The Revenue implications for the Union Government are significant and as we have noted earlier in the table extracted herein above the total amount of duty in each of the cases is Rs. 11.51 Crores, Rs. 7.99 Crores, Rs. 101 Crores, Rs. 2.65 Crores, Rs 1.97 Crores and Rs. 2.02 Crores respectively - Held that: an issue of an ad interim protection to the effect that the Appeals before the Tribunal shall not be dismissed for want of compliance with the order of pre-deposit in the meantime
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2011 (10) TMI 432 - CESTAT, NEW DELHI
Demand - Undervaluation - Admission of additional evidence - The department was of the view that there are no sales at the factory gate and the sales are actually taking place from the premises of the distributors and, hence, the freight/transport expenses upto the distributor’s premises, distributor’s commission and also the rental for the canisters would be includible in the assessable value of the goods - learned Counsel for the appellant, pleaded that all the sales of the appellant during the period of dispute were at the factory gate, that the transactions between the appellant and their distributors were on principal to principal basis - Held that: the Tribunal in its judgment dated 15-6-2007 in the appellant’s own case for the period from January 2004 to September 2004 and, as mentioned above, in this judgment, the Tribunal after considering the evidence on record, has given a clear finding that sales were taking place at the distributor’s premises and, therefore, the distributor’s commission and freight expenses upto the distributor’s premises would be includible in the assessable value Regarding inclusion of rental for canisters - Tribunal in favour of the appellant in their own case vide judgment reported in (2007 -TMI - 31573 - CESTAT NEW DELHI) - Decided in favor of the assessee by way of direction to re-quantification of duty demands
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2011 (10) TMI 428 - CESTAT, MUMBAI
Differential duty paid wrongly - no refund claim filed - credit taken suo-mottu - show cause issued - Held That:- In view of Mafatlal Industries (1996 - TMI - 44411 - SUPREME COURT OF INDIA), refund claim to pass through unjust enrichment in BDH Industries (2008 - TMI - 30889 - CESTAT MUMBAI), suo-mottu credit of cenvat is ineligible.
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2011 (10) TMI 427 - CESTAT, NEW DELHI
Arbitrary adjudication - capacity estimated at 4 MT tonne against 3 MT - Held That:- Revenue failed to bring on record the evidence suggesting that the quantum of production alleged was due to suppression of purchase of input or there existed evidence of clandestine removal and also corroborative evidence to show enhancement of capacity by necessary electrical installation and evidence of electricity consumption or any communication of evidenciary value from electricity authority to plead higher plant capacity. There is nothing on record to show that high power connection supported by evidence was made on a particular date and that resulted in higher amount of production. Reliance placed on R.A. Casting (2010 -TMI - 205214 - ALLAHABAD HIGH COURT)
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2011 (10) TMI 420 - CESTAT, MUMBAI
Compounded Levy Scheme - Annual Capacity - Held -Cooling zone is neither installed in nor attached to the stenter. Further it is not aiding the process of heat setting or drying of the fabrics but merely cools the fabrics which comes out of the stenter. In view of the above factual position, the inclusion of the cooling zone in the number of chambers used for processing is incorrect in law.
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2011 (10) TMI 414 - CESTAT, MUMBAI
Principle of Unjust Enrichment - Onus to Proof - In view of Commissioner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd (2004 -TMI - 46926 - SUPREME COURT OF INDIA), case decided against assessee.
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