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Central Excise - Case Laws
Showing 41 to 60 of 240 Records
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2011 (7) TMI 1084 - CHHATTISGARH HIGH COURT
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... ... ..... .L.T. 781 (Tribunal) Bhillai Conductors (P) Ltd. v. Commissioner . While dismissing the CER, the Hon’ble High Court passed the following order “1. The matter is called for hearing twice. None appears nor is any representation made on behalf of the applicant. The applicant may not be interested in pursuing the matter. 2. In view of the above, the matter is dismissed for want of prosecution.”
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2011 (7) TMI 1047 - GUJARAT HIGH COURT
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... ... ..... the credit was reversed before the issuance of show cause notice. To our mind, by virtue of decision in the case of Dharamendra Textile Processors (supra), this cannot be the sole ground for deleting the penalty. However, in view of the decision in the case of Rajasthan Spinning and Weaving Mills (supra), explaining the decision in the case of Dharamendra Textiles, other defences of the assessee shall have to be examined. In other words, if the assessee can establish that it had sufficient reasons for not paying the duty and that there was no intention to evade duty, question of penalty under Section 11AC will have to be looked from that angle. 7. In the result, the judgment of the Tribunal is set aside. The proceedings are remanded before the Tribunal for consideration of the appeal of the assessee afresh after hearing both sides, bearing in mind the observations made hereinabove and those of the Apex Court in the aforesaid cases. The appeal is disposed of accordingly.
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2011 (7) TMI 1046 - MADRAS HIGH COURT
It is true that the case of the appellant would come under the exemption notification with effect from 16 March, 1995. However the benefits of Notification No. 57/95, dated 15 March, 1995 cannot be extended to the appellant for the period from September, 1994 to January, 1995. In the absence of anything contained in the notification giving retrospective effect, the appellant cannot be heard to say that they are entitled to the benefits of the notification.
The Original Authority, Appellate Authority as well as CESTAT concluded the issue against the appellant. The case was decided with reference to the relevant classification and the exemption notification issued by the department. Since it was only by interpreting the notification, the authorities rejected the claim made by the appellant. We do not find any substantial question of law involved in this matter.
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2011 (7) TMI 1045 - GOVERNMENT OF INDIA
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... ... ..... to negate the above stipulation. 8. In view of above, Government does not find the own interpreted self pleas of the applicant that requirement of certified original Central Excise documents should be done away with, as legally admissible. The lower authorities have discussed in detail all the above grounds (including time bar issue) of the Applicant elaborately and Government is in conformity thereof. Government therefore conclude here that neither the (created) proofs of said exports were acceptable nor the co-relation to hold that the export goods were indeed those dutiable goods which were actually cleared from the factory of manufacture without payment of duty, thus leaving the lower authorities with no other option but to demand the already foregone Central Excise duty. 9. Government therefore finds the impugned Order-in-Appeal as perfectly legal and proper. 12. The Revision Applications are thus rejected for being devoid of merits. 13. So, ordered.
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2011 (7) TMI 1044 - CESTAT CHENNAI
Valuation - Demo Cars - comparable prices - demand on the ground that their price was lower than the price fixed for other cars and hence the price was not the sole consideration for sale - Held that:- The assessees have not been able to demonstrate any difference between the ‘demo cars’/’normal cars’ sold through dealers. The ‘demo cars’ are put to test and usage as desired by prospective buyers and the assessees also permit such usage to enhance the marketability of their cars - the transaction value cannot be accepted and comparable price adopted for other cars (other than ‘demo cars’) has correctly been adopted and differential duty charged thereon - demand of duty with interest upheld.
Penalty - Held that:- The penalty is not warranted as the assessees received and paid the duty on the transaction value and the demands are also within the normal period of limitation - penalty set aside.
Appeal allowed in part.
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2011 (7) TMI 1028 - GUJARAT HIGH COURT
Validity of notification by which annual capacity determination rules - Whether rules ultra vires Section 3A of the Central Excise Act - Held that:- where for a period of seven days or more nothing can be produced or manufactured, then, prorate reduction would be available under Sub-section(3) of Section3A and in case, the manufacturer/producer manufactures/produces something less than the annual production capacity (as determined under Sub-section(2) of Section3A), then, he can always approach the Commissioner, convince him that his annual capacity though is much, but, he has produced some quantity less than his annual capacity and as such case, he is entitled to refund. If the section takes care of the rights of the producer/manufacturer by providing that on less production/manufacture, he would be entitled to refund and the Supreme Court says that Section3A is relatable to the production and not the capacity only, then, it would not be proper to say that Section3A is ultra vires the Constitution. We would agree with the learned Counsel that excise can be levied on the production and/or manufacture and not otherwise, but, Section3A cannot be held to be ultra vires the Constitution or the Central Excise Act itself, simply because it provides levy of excise on the annual production capacity, specially when it gives a right to the manufacturer/producer to claim refund on less production - Following decision of Messers Gopal Iron & Steel, Co. (Gujarat) Ltd. & anr. [2006 (7) TMI 644 - GUJARAT HIGH COURT] - Decided in favour of Revenue.
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2011 (7) TMI 994 - CESTAT, NEW DELHI
Whether appellants are entitled to take cenvat credit on the strength of invoices where the goods described as C.R. Sheets instead of H.R. sheets or not – manufacturing business of motor vehicle parts. - Held that:- appellants are entitled to take cenvat credit on the goods received by them. It is not the allegation that the appellants had procured H.R. Sheets clandestinely without cover of invoice, therefore, the cenvat credit cannot be denied. description of the goods different but the fact is not denied, the appellants received the goods, therefore, the appellants are entitled to take credit. appeal is allowed
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2011 (7) TMI 993 - CESTAT, NEW DELHI
Whether the M.S. plates, beams, angles, channels, sheets etc. used for repair and replacement of damaged parts of cement plant and machinery - clin, pre-heater, cement mill, raw mill, coal mill etc. are eligible for Cenvat credit either as capital goods or as inputs – Held that:- foundation and supporting structures embedded to earth are capital assets and the same do not qualify as capital goods as defined in Rule 2(a) of Cenvat Credit Rules and hence the steel items used for erection of the supporting structures are not eligible for Cenvat credit. order denying Cenvat credit in respect of these items is upheld Whether unmachined steel castings and rough HRCS castings used for replacement of damaged parts of the cement plant and machinery are eligible for Cenvat credit – Held that:- these items are used as a replacement for parts of the machinery and hence the same have to be treated as components and accessories of the cement, plants and machinery. Commissioner (Appeals)’s order denying Cenvat credit in respect of these items is not sustainable Whether nitrogen gas falling under Chapter 28 and PVC sheets plastic sheets of Chapter 39 are eligible for Cenvat credit – Held that:- appellant have not specified as to how the same are used in or in relation to the manufacture of the finished goods. Commissioner (Appeals) finding denying the Cenvat credit upheld
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2011 (7) TMI 984 - CESTAT, NEW DELHI
Manufacturing from bought out items - Assembly - Whether the respondents had right to realise the duty from the buyers on CJK when such goods were not manufactured and were not dutiable - Held that:- prior to the judgment of the Tribunal and the Apex Court, the respondents were paying duty on the CJK by treating the same as excisable as the department was of the view that the process of assembly of CJK amounts to manufacture. However, the respondent continued to pay the duty on CJK even after the decision of this matter in their favour by the Tribunal’s order and upholding of the Tribunal’s order by the Hon’ble Supreme Court vide judgment dated 3-3-2001. So long as the respondent were paying duty on the CJK, they could always recover the same from their customers as central excise duty is an indirect tax and there is no prohibition in the Central Excise Act, 1944 or the Rules made thereunder in this regard.
Provisions of section 11D - held that:- since the amount collected in respect of sale of CJKs as excise duty was paid by the respondent to the Government and as such, there is no contravention of the provisions of Section 11D, the question of asking them to pay this amount to the Government does not arise.
Whether the respondent are entitled to adjustment of the duty payable on the intermediate products manufactured by them against the duty paid on CJKs which were not dutiable - Held that:- The process of adjustment of duty paid on CJK on which no duty is payable, towards duty liability in respect of the intermediate products, on which duty is payable, amounts to just changing the head under which the duty had been paid and so long as the duty is not being refunded to the respondent, there would not be any unjust enrichment. - refund of tax means giving the tax paid back to the assessee, which he can use the way he wants and the same can not be equaled with adjustment of tax paid under some head which was not payable, against tax liability under some other head, which is to be discharged. For such adjustment no application under Section 11B is required - Decided against the revenue by third member decision.
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2011 (7) TMI 983 - CESTAT, MUMBAI
MRP bases valuation under section 4A - Charging Optional Service Charges (OSC in short) and “Rust Proof Protection Charges (RPP in short) over and above the MRP - Violation of principles of natural justice - Circular No. 432/64/98-CX.3, dated 23-11-98 - Held that: on top of the packing box of each refrigerators/washing machines there is a sticker showing 5 years warranty which is very much in the knowledge of the customers when they buy the refrigerators/washing machines - It is also the fact on record that when these refrigerators/washing machines were cleared by their dealers to retail customers, dealers issue a composite invoices for the sale price+OSC/RPP - The contention of the appellants that the OSC is an additional consideration and is not affecting the value of the goods chargeable to duty under MRP valuation is not convincing as the goods were cleared by the dealers of the customers through consolidated invoices wherein the MRP+OSC and RPP are collected from the customers collectively - the goods have been sold over and above the MRP, therefore, the OSC/RPP are includable in the assessable value - Decided against the assessee
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2011 (7) TMI 978 - CESTAT, MUMBAI
Inclusion in Assessable value - Turn over Tax - Rule 7 of the Central Excise (Valuation) Rules, 2000 - The case of the department is that in respect of vehicles sold from the depots situated in the State of Tamilnadu, the assessee has collected Turn Over Tax (TOT) from the buyers even though in the invoices issued to the buyers, the column against the turnover tax is left blank - Decision of Tribunal in Bangalore Paints Ltd., Vs. (2001 (3) TMI 165 - CEGAT, BANGALORE) - Held that:- turn over tax is a permissible deduction and the definition of transaction value under the new section effective from 01/07/2000 also clearly states that the tax paid or payable on the goods shall not form part of the transaction value for the purpose discharge of excise duty liability - Decided in favor of assessee.
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2011 (7) TMI 977 - CESTAT, DELHI
Demand - Rule 96ZO(3) of the erstwhile Central Excise Rules, 1944 - whether the lower authority was justified in reducing the penalty imposed by the adjudicating authority. The records evidently disclose that the adjudicating authority had imposed penalty equivalent to the amount of duty confirmed against the respondents and their failure to pay the same on time - Apex Court in Dharmendra Textile Processors case (2008 (9) TMI 52 - SUPREME COURT), it was necessary for the authorities below to impose penalty equivalent to the duty demand confirmed against the assessee - Decided against the assessee
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2011 (7) TMI 976 - CESTAT, MUMBAI
Place of removal - Cost of freight - assessee had indicated the freight amounts separately but excise duty was paid on the value exclusive of freight. - held that:- the place of removal remains the factory-gate and, therefore, the cost of transportation from the place of removal to the place of delivery cannot be included in the assessable value of the goods as per the provisions of Section 4 of the Central Excise Act, 1944. - Decided in favor of assessee.
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2011 (7) TMI 975 - CESTAT, MUMBAI
Reversal of cenvat credit - when the appellants themselves have informed the department that after 31/12/2004 they have ceased their character of 'manufacturer' and in that case they have retained the inputs on which they have availed CENVAT credit and an activity of softening was undertaken by them and cleared on payment of duty on input plus value addition. In such a situation, whether the appellant are required to reverse the CENVAT credit availed by them or not?
Held that:- the appellant have taken inadmissible credit, therefore, they were issued show-cause notices to reverse the same. From the facts of this case it is very much clear that the appellant have taken inadmissible credit but they have paid the same at the time of clearance with value addition. In that scenario, as held by the Hon'ble apex court in the case of Narmada Chematur Pharmaceuticals Ltd. (2004 (12) TMI 93 - SUPREME COURT OF INDIA) where the assessee has wrongly availed modvat credit and was liable to reverse such amount and it was stated that the duty paid and modvat credit availed were identical and therefore consequences of payment of excise duty after availing the credit was revenue neutral. - payment of duty on value addition on the inputs received by the appellant amounts to reversal of the CENVAT credit as demanded by the department in the show-cause notices. - however penalty of ₹ 10,000/- imposed.
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2011 (7) TMI 974 - CESTAT, NEW DELHI
Cenvat Credit on the basis of Bill of Entry in the name of International Operation Division of the assessee - Penalty - Circular No. 179/13/96-CX., dated 29-2-1996 - Plain reading of the order of the Commissioner clearly indicates that the bill of entry was in the name of the appellant only - It is pertinent to note that the appellant’s factory in Bhopal comes directly under the jurisdiction of Commissioner, Bhopal and, therefore, the finding that in the absence of endorsement in the bill of entry by the International Operations Division, it was not possible to ascertain as to whether the goods covered by the said bill of entry were received and used in the assessee factory cannot be appreciated. - Cenvat Credit allowed.
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As regards the material procured from Hindustan Copper Limited - The fact that the job worker has processed the material and sent the intermediate goods manufactured using the inputs following Notification No. 214/86 has not been refuted. In the given facts and circumstances of the case, the transport of material directly to the job worker’s premises to avoid payment of extra period and same time, cannot lead to denial of credit - Cenvat Credit allowed.
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2011 (7) TMI 973 - CESTAT, NEW DELHI
Assessable value - Rule 6(b)(ii) of the Central Excise (Valuation) Rules, 1975 - The department’s allegation is that in determining the assessable value on the basis of the cost of production, the appellant did not include the element of interest on loans and loss of materials - The department’s allegation is that in determining the assessable value on the basis of the cost of production, the appellant did not include the element of interest on loans and loss of materials - department alleged that there was short payment of duty of Rs. 8,19,569/- during 1995-1996 to 1999-2000 (October, 1999) period - Board’s Circular No. 6/29/2002-CX.I, dated 13-2-2003, the cost of the goods cleared for captive consumption must be determined in accordance with the general principles of costing and accordingly for this purpose, CAS-4 Standard is to be adopted - As per CAS-4, for determining the cost of goods, the interest cost is not to be included - Supreme Court in the case of C.C.E., Pune v. Cadbury India Ltd. reported in (2006 (8) TMI 2 - SUPREME COURT OF INDIA) has held that for determining the cost of production for the purpose of determining the assessable value under Rule 6(b)(ii) of Central Excise (Valuation) Rules, 1975, the cost must be determined, strictly according to the principles of costing and for this purpose CAS-4 must be adopted As regards the loss of raw materials, the appellant’s plea is that materials loss referred in the balance sheet is ore concentrates loss and since duty is being demanded in respect of ore concentrates, its cost cannot be included - Held that: if the department’s allegation is that the loss of raw materials referred to in the balance sheet refers to loss of ores or other raw materials not of ore concentrates, the burden of proving this would be on the department, but no evidence in this regard has been produced - Decided in favor of the assessee
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2011 (7) TMI 972 - CESTAT, NEW DELHI
Waiver of pre-deposit - SSI Exemption - Misdeclaration - Classification - held that:- Supreme Court in the case of Benara Valves Ltd. v. CCE (2006 (11) TMI 6 - SUPREME COURT OF INDIA) and Indu Nissan Oxo Chemicals Industries Ltd. v. Union of India (2007 (12) TMI 220 - SUPREME COURT OF INDIA), for determining the question of waiver from the requirement of pre-deposit of duty demand, interest and penalty, in accordance with the provisions of the proviso to Section 35F, two factors have to be kept in mind - the aspect of undue hardship to the appellant and imposing conditions for safeguarding the interest of revenue.
Classification - held that:- Once the classification of a particular product been determined under Chapter 57, the question of its exact classification under Heading 57.01 or 57.02 or 57.03 has to be determined by applying sub-heading Notes 2(A) and 2(B) to Section XI, readwith Chapter Note 2 of this Section.
Manufacture of the carpets - Classification - held that:- There is no dispute that taking the base fabric and exposed surface as a whole, it is jute fibre which pre-dominates by weight and it is on this basis that the Appellant, relying upon sub-heading Note 2(A) readwith Note 2 of Section XI plead that the carpets, in question, have to be treated as non-woven carpets of Jute falling under sub-heading 5703.20.
Prima facie view - held that:- the carpets, in question, which are non-woven carpets with base/ground fabric of jute and exposed surface consisting of polyester/polypropylene fibre, are correctly classifiable as “other carpets” under sub-heading 5703.90.
Appellant had at no stage disclosed the detailed manufacturing process of the carpets - appellant have not been able to establish prima facie case in their favour and hence this is not the case for waiver from the requirement of pre-deposit. - Stay granted partly.
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2011 (7) TMI 971 - KARNATAKA HIGH COURT
Whether the finding of the Tribunal that where one unit generates power and the neighbouring unit purchases the same, the inputs used for generation of power would be entitled for modvat credit in respect of the second unit which purchases power provided there is evidence of an amount equal to the amount of duty on the inputs used in generation of power and amount equal to duty should be considered as duty for availing cenvat credit, is perverse and arbitrary - held that:- though the generation of electricity is for captive use, if the electricity manufacture is found to be excess, the same is permitted to sell under the notification dated 20-2-2003 - It is clear from the above said clause that EOU unit which has established captive power plant can sell electricity found to be excessive subject to the condition mentioned there on and to sell surplus power in Domestic Tariff Area on payment of amount equal to the duty leviable on consumables and raw materials but for the exemption thereon, used for generation of each unit of power so sold in the domestic Tariff Area on the basis of approval by the Board of Approval - the order passed by the Tribunal is justified and the finding that the respondent is entitled to cenvat credit and the same could not have been recalled, does not suffer form any perversity, arbitrariness - Appeal is dismissed
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2011 (7) TMI 970 - CESTAT, DELHI
Penalty - whether penalty could be levied on the person who did not actually deliver the goods and merely issued a fake invoice which enabled wrong availing of cenvat credit and the extent of penalty which could be levied. - appellant contended that he got enriched only to the extent of 1 to 3% of the credit passed on and that, therefore, they cannot be held to be equal partners in the commission of offence - held that:- merely because the monetary benefit differs from offender to offender in relation to the offence relating to the same act by various persons that cannot be a criteria to hold that the gravity of offence would differ from person to person in such cases. - penalty confirmed.
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2011 (7) TMI 969 - CESTAT, MUMBAI
Condonation for delay - held that:- error committed by the Consultant should not be a reason for not condoning the delay and dismissing the appeal.
Application for stay - Evasion of duty - misdeclaration - authorized signatory - held that:- adjudicating authority has clearly recorded that the Government Examiner of Questioned Documents, Hyderabad has reported, that signatures made on the application for Central Excise Registration Certificate, and the declaration, do not tally/match with the signatures of Shri S. Hotwani/Shri H. Bulchandani. This would definitely indicate that the applications for registration and declarations of stocks were not made by the appellant/applicants hereinabove either in their capacity as director of the companies or in their personal capacity.
It is also seen from the findings recorded by the adjudicating authority that there is no corrobrative evidence on records, to come to a conclusion that the appellant company and two individuals had played any role in the entire exercise of duty evasion by M/s. KGPF. - Pre deposit waived - stay granted.
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