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Central Excise - Case Laws
Showing 81 to 100 of 338 Records
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2011 (3) TMI 1221
Application for stay - Time limitation - Condonation of delay - Held that:- Appeal filed by the appellant has been dismissed by the lower appellate authority on 61st day without exercising his discretionary power to condone the delay and without giving any opportunity to explain the reasons for delay in filing the appeal - lower appellate authority atleast should have given a chance to the appellant to explain the reason for delay which is merely a delay of only one day - Appeal as well as stay application are disposed of
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2011 (3) TMI 1220
Refund denied - Held that:- As it is apparent that the claim has been essentially rejected on the applicability of principle of unjust enrichment consequent to failure on the part of the appellant to prove that they had not passed on the duty liability on the ultimate consumer - In view of settled law, unless the assessee is able to satisfy that he has not passed on the duty burden on the consumer, question of grant of refund does not arise - Decided against the assessee
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2011 (3) TMI 1219
Refund application rejected by the department without issuing any show cause notice - contention of the department that mere absence of show cause notice cannot be a justification to set aside the order of the adjudicating authority in view of the fact that the respondent was present in the course of hearing - Held that:- Mere presence of the assessee in the course of hearing of the matter does not empower the department to encroach upon the right of the assessee to have a fair opportunity of placing before the adjudicating authority the defence, whichever the assessee wants to place on record - when the law clearly requires issuance of the show cause notice before the conclusion of the adjudication proceedings, it is not open to the department to bypass such legal requirement and find out short-cut method - in favour of assessee.
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2011 (3) TMI 1218
Demand of duty cleared by utilising the CENVAT credit availed by them on molasses - Held that:- Undisputedly, the period involved is from September, 2001 to December, 2001. The CENVAT Credit Rules, 2001 which came into force from 21/06/2001 under Rule 3(3) clearly provided that the CENVAT credit may be utilized for payment of any duty of excise on any final products or for payment of duty on inputs or capital goods themselves if such inputs are removed as such or after being partially processed, or such capital goods are removed as such provided that while paying duty, the CENVAT credit shall be utilised only to the extent such credit is available on the fifteenth day of a month for payment of duty relating to the first fortnight of the month, and the last day of a month for payment of duty relating to the second fortnight of the month or in case of a manufacturer availing exemption by notification based on value of clearances in a financial year, for payment of duty relating to the entire month. Revenue Appeal dismissed.
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2011 (3) TMI 1217
Classification - whether non-inclusion of valuation of components / parts like landing gears, running gears, pressure plates, etc. while arriving at their assessable value of the LPG tankers manufactured by the appellant was justified? - Held that:- Tribunal therein had clearly ruled that the LPG tankers manufactured by the assessees by mounting on trailers were classifiable under Heading 87.07 of the Central Excise Tariff Act and on conversion of such tanks and duty-paid running gear, landing gear and mounting plate into tanker trailer / semi-trailer, the product would be assessable to duty under Heading 8716.00 of the Central Excise Tariff Act read with relevant notification permitting adjustment of duty already paid on the inputs against the duty that would be payable on the final products. In the absence of specific challenge to these findings, the contention that landing gear, running gear, etc. did not form components of LPG tankers cannot be accepted.
Regarding stay application - while disposing of the stay application, the Commissioner (Appeals) had duly considered the point relating to prima facie case and had accordingly directed the appellants to deposit an amount of Rs. 9,00,000 - Appeal is dismissed
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2011 (3) TMI 1216
Penalty under Rule 209A - noticee had procured ship breaking scrap from various ship breakers including the appellant and without receipt of the goods, took credit of the duty paid on the scrap - Held that:- As in the invoices supplied by M/s.Rishi Ship Breakers, the vehicle numbers mentioned are of non-goods carrier, such as scooters/motor cycles - M/s.Rishi Ship Breakers could not satisfactorily explain the discrepancies noticed in the invoices - Decided against the assessee
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2011 (3) TMI 1215
Classification - whether the appellants products 'Vicks Cough Drop' are classifiable as Ayurvedic medicaments under Chapter heading 3003.39 or as P&P medicaments under Chapter heading 3003.10 - Held that:- The issue is no more res integra as the same has been settled by the Hon'ble Apex Court in the case of NATURALLE HEALTH PRODUCTS (P) LTD. Versus CCE (2003 (11) TMI 69 - SUPREME COURT OF INDIA) wherein held Vicks are ayurvedic medicaments classifiable under heading 3003.39 - Decided in favor of the assessee.
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2011 (3) TMI 1214
Provisional assessment - refund of security deposit by way of bank guarantee encashed by the department - whether there is requirement of filing a refund claim in the prescribed form? - unjust enrichment - Held that:- The period involved in this case is 1992-97 and the refund was due to the party under Rule 9 (B) (5) of the Central Excise Rules, 1944 and the provisions on unjust enrichment did not apply to the said rules at the relevant time. Therefore, the department should have suo motu refunded the amount paid in excess on the basis of a simple letter from the assessee. As held in the case of in the Oswal Agro Mills [1994 (2) TMI 57 - SUPREME COURT OF INDIA] the provisions of Section 11B is not attracted when refund arises due to encashment of bank guarantee.
Thus the assessee was entitled to refund on the basis of simple letter rather than following the detailed procedure prescribed under Section 11B of the Central Excise Act, 1944. Accordingly allow the appeal filed by the party with consequential relief, if any.
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2011 (3) TMI 1213
Demand - Whether cost of transportation and insurance charges incurred on taking the goods up to the place of removal was includable in the assessable value - Held that:- As decided in Escorts JCB Ltd. Vs. CCE (2002 (10) TMI 96 - SUPREME COURT OF INDIA) it is clear that the ownership in property may not have been any relevance in so far as insurance of goods sold during transaction is concerned. It would therefore not be lawful to draw an inference of retention of ownership in the property sold by the seller merely by reason of the fact that the seller had insured such goods during transit to buyer - Decided in favor of the assessee
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2011 (3) TMI 1212
Assessable value - whether the price at which excisable goods are sold by the appellants in course of wholesale trade to unrelated buyers could be applied for determining the assessable value of finished goods cleared by them for captive consumption in their own factory at Akurdi? - Held that:- When the undervaluation is alleged by the department, it is their responsibility to prove the case. In this case, the department could have examined on their own whether the goods cleared by the assessee to their sister unit at Akurdi and also the goods cleared to dealers were identical or comparable or not. The department could also have ascertained from the Akurdi unit whether the goods supplied by the Waluj unit underwent any further process at the other end as claimed by the assessee.The department has not made any efforts whatsoever to ascertain and verify the facts and rebut the contentions made by the assessee. Thus the allegations made by the department remain unsubstantiated.
No infirmity in the conclusion drawn by the lower appellate authority that the goods were not comparable and hence Rule 6 (b) (ii) of the Central Excise Valuation Rules, 1975, would apply in the instant case and accordingly the appeal filed by the department rejected.
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2011 (3) TMI 1211
Undervaluation - includeability or otherwise of the fixed rental charges collected by the appellants in respect of cylinders (in which the gases were supplied) in the assessable value of gases - Time limitation - The contention of the assessee is that the rental charges are collected for the delayed return of cylinders after the free loan period of 10 days and they have a slab rate of rent depending upon the time taken to return the cylinders - Held that:- As in the Indian Oxygen Ltd.,[1988 (8) TMI 98 - SUPREME COURT OF INDIA] clearly held that the supply of cylinders is an ancillary activity to the manufacture of gases and, therefore, the consideration received for the same cannot be included in the assessable value of the gases. Similarly, held in the case of CCE, Meerut Vs. Bisleri International Pvt Ltd.[2005 (7) TMI 102 - SUPREME COURT OF INDIA] the rent on containers i.e. rent equivalent to interest collected by the assessee on account of delay in returning of empty crates/bottles cannot form part of the value of aerated waters and, hence, not includable in the assessable value. Also see CCE, Indore Vs. Indore Bottling Co.[2002 (11) TMI 103 - SUPREME COURT OF INDIA]
Also in the assessee's own case [2002 (2) TMI 820 - CEGAT, MUMBAI] this Tribunal held that the storage tank hire charges collected in respect of supply of gases cannot be included in the assessable value of the gases supplied as the activity is not a manufacturing activity but a facility provided to the buyers.
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2011 (3) TMI 1209
Search and seizure - Clandestine removal - penalty imposed - Held that:- As it is clear from the records that the main issue relating to clandestine production of iron and steel products is yet to be decided by the competent authority. That being so, no conclusions could have been drawn regarding the cash recovered i.e., whether they are sale proceeds of goods clandestinely produced or removed. Similarly, without coming to a conclusion on the liability to confiscation of the goods no penalty can be imposed on anyone under Rule 26/27 of the Central Excise Rules. Thus grant stay of the recovery of the demands confirmed and penalty imposed against the three appellants - Appeal is allowed by way of remand
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2011 (3) TMI 1208
Application for stay - Waiver of pre-deposit - violation of principles of natural justice - Held that:- As the appellants has filed an appeal before the Commissioner (Appeals) on 15/09/2009 and opportunity of being heard was given only on 05/10/2009 wherein the applicants' stay application is to be disposed of within one month and opportunity was given after 20 days of filing the appeal, when the application was to be disposed of in a time-bound manner, the applicants should have been given the earliest opportunity to defend their case. In this case, it is a matter of record that opportunity of being heard of the stay application was given after 20 days of the filing of the appeal wherein the appellant sought adjournment which was denied and the stay application was disposed of in violation of principles of natural justice. Hence, the impugned order is in violation of principles of natural justice - remand the matter back to the lower appellate authority to consider the stay application as well as the appeal of the appellants afresh - appeal is allowed by way of remand.
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2011 (3) TMI 1207
Application for stay - Whether the cost of scrap is to be included in the valuation or not? - Held that:- As decided in case of Automotive Stampings and Assemblies Ltd. [2013 (7) TMI 670 - CESTAT MUMBAI] following the case of General Engineering Works vs. Commissioner of Central Excise & Customs, Jaipur (2005 (3) TMI 16 - SUPREME COURT OF INDIA) the cost of scrap is includable in the assessable value, if either raw material value is depressed or the conversion charges have been depressed on account of non inclusion of value of scrap in the assessable value - as the appellants have failed to make out a case in their favour they are directed to pre-deposit the entire duty amount within eight weeks - as the impugned order has not discussed the merits of the case the appeal is disposed of by way of remand.
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2011 (3) TMI 1206
Demand of duty, interest and penalty - Goods cleared from factory to another unit for captive consumption on stock transfer basis - contention of the department is that the appellant has not determined assessable value as per Section 4(1)(b) of the Central Excise Act, 1944 r.w.r. 6(b)(ii) of the Central Excise Valuation Rules, 1975 - Held that:- As appellants supplied the cost data supported by Chartered Accountant's certificate it needs to be examined, order set aside and appeal allowed by way of remand
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2011 (3) TMI 1204
Abatement sought by the unit under Rule 10 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 denied - unit was not closed continuously for a period of 15 days or more in the month of November, 2008 - Held that:- A reading of the rule makes it very clear that if a unit is closed continuously for a period of 15 days or more the benefit of abatement will be available - Nowhere does the rule specifically stipulate that the closure should take place within a calendar month itself - there is no dispute that the unit was closed continuously for a period of 15 days even though the closure overlapped in October-November and again in November-December - Decided in favor of the assessee
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2011 (3) TMI 1203
Input service credit on outward transportation of final products to their sister unit and to their customers from their factory gate denied - Held that:- If the appellants have been able to satisfy the lower appellate authority that the appellants have complied with the conditions of Board Circular No. 97/8/2007 dated 23.08.2007, the appellants are entitled for input service credit on goods transportation agency services - as this fact has to be examined by the adjudicating authority whether the transportation cost has been included in the assessable value by the appellants in compliance with the Board Circular stated here-in-above remand back the matter to the original adjudicating authority to re examine the issue.
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2011 (3) TMI 1202
Manufacture - Revenue challenged order wherein the lower authorities after holding that the activity undertaken by the assessee amounts to manufacture and given them the benefit of cum-duty - Held that:- On perusal of the order passed by this Tribunal in the earlier period of the assessee's own case, wherein it has been held that the activity stated herein above does not amount to manufacture. Therefore no hesitation to hold that in this case also that the activity undertaken by the assessee does not amount to manufacture, therefore, no question of any duty arise. Thus when there is no question of any duty, therefore, the benefit of cum-duty does not arise at all - Revenue's appeal is to be rejected.
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2011 (3) TMI 1201
Classification - prickly heat powder - Chapter Heading No.33.04 or No.30.03 - Held that:- As decided in Muller & Phipps (India) Ltd., Vs. CCE, (2004 (5) TMI 68 - SUPREME COURT OF INDIA) wherein held that the prickly heat powder is classifiable under Heading No.30.03 of the Central Excise Tariff Act, 1985 - Decided in favor of the assessee
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2011 (3) TMI 1200
Penalty u/s 11AC - Held that:- It is apparent from the facts of the case that there is no charge against the respondent that they have evaded /short-paid the duty by way of fraud, collusion, willful misstatement, suppression of facts or in contravention of the provisions of Act/Rules with an intent to evade payment of duty. Therefore, no penalty under Section 11AC is leviable. In favour of assessee.
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