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Central Excise - Case Laws
Showing 81 to 100 of 240 Records
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2011 (7) TMI 904 - ANDHRA PRADESH HIGH COURT
Writ petition - Stay of demand - Principles of natural justice - commissioner (appeals) waived the condition for entertaining the appeals and restricted the pre-deposit amount of penalty to 10% and 50% respectively - It is now well settled that when the order impugned is subject-matter of an appeal before the statutory authority, this Court cannot go into the validity of the order so passed - Learned counsel for the petitioners contends that by relying upon the statement recorded in a case filed against the dealer of the petitioner-company namely M/s. Victor Hi-Tech at Madurai, proceedings were initiated by the Joint Commissioner of Central Excise, Madurai dated 31.3.2009 against the said dealer and also the writ petitioner-company - writ petition dismissed.
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2011 (7) TMI 903 - CESTAT, NEW DELHI
Valuation u/s 4A based on MRP or u/s 4 based on truncation value - According to the department the items were classifiable under subheading No. 7418.90 of the Central Excise Tariff as “bathroom accessories” and, hence chargeable to duty on value determined under Section 4A of the Central Excise Act, 1944 on the basis of their declared MRP.
Classification - of bath fittings - held that:- we upheld the classification of brass towel rings, towel racks and robe hooks under sub-heading 83.02 and of brass tumbler holder under 7418.10 of the Tariff.
As regards, grab bar, the same is fixed by the side of bath tub. - It’s more like base metal amounting of heading 83.02.
As regards, bottle trap & waste, the same is used in the wash basins for removing waste water and does not control or regulate the flow of water. - this item would be correctly classifiable as part of brass sanitary ware under sub-heading 7418.90 of the Tariff and as such its classification under subheading 8481.80 is not correct.
Revenue’s appeal is, accordingly, partly allowed.
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2011 (7) TMI 902 - ANDHRA PRADESH HIGH COURT
Waiver of pre-deposit - It is the sole contention of the learned counsel for the petitioners that in view of the remand order passed by the Appellate Tribunal at Madurai Bench in A. Nos. 223 to 225 & 232 of 2009, dated 21-7-2010 in similar set of facts, the order passed by the primary authority i.e. Additional Commissioner of Central Excise, Hyderabad dated 20-12-2010 is liable to be set aside in the impugned appeals by the first respondent and therefore, insisting the petitioners for pre-deposit amount of penalty by the first respondent would cause undue hardship - When the discretion has been vested in the appellate authority to dispense with such deposit unconditionally or subject to such conditions, as it may impose in its discretion taking into consideration the undue hardship which it is likely to cause to the appellant - Held that: this Court cannot go into the merits of the order passed by the primary authority which imposed the penalty - The writ petitions are accordingly dismissed
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2011 (7) TMI 890 - CESTAT, MUMBAI
Why reference should not be made to the Hon'ble High Court for necessary contempt proceedings for seeking adjournment on false grounds - the appellants were seeking adjournment on the grounds of ill health of their Counsel who has already withdrawn his vakalatnama clearly shows the act of the notices seeking adjournments on false ground with the malice intention and interference in the administration of the justice of this Tribunal - Registry is directed to forward the reference to the Hon'ble High Court of Bombay
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2011 (7) TMI 889 - CESTAT, MUMBAI
Search and seizure - Clandestine clearance - Notification No. 9/2000-CE dated 01/03/2000 - Held that:- Non-maintenance of records in Quality Control Lab and assessee's claim of regular destruction of production card strengthens Revenue's case. - the case of clandestine removal is established against the respondent. Regarding related party - Held that: allegation of Revenue are based on presumption and not on any evidence. This is a fact that both companies are private limited companies, separately registered under the Companies Act. Commonality of one Director does not lead to the conclusion that they are related as per Section 4(4)(c) of Central Excise Act, 1944 - Decided in favor of the assessee
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2011 (7) TMI 885 - CESTAT, MUMBAI
CENVAT credit - Bogus invoices - Rule 173Q of Central Excise Rules, 1944 - it is clear that the respondent not only received the invoices but also received the goods in their factory. The department could not produce any evidence in order to demolish the above findings of the lower authorities - Supreme Court decision in the case of CCE vs. HMM Ltd. (1995 -TMI - 43962 - SUPREME COURT OF INDIA) held that penalty is not imposable unless the department is able to sustain its demand show-cause notice which was under challenge on the ground of limitation - Decided in favor of thee assessee
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2011 (7) TMI 884 - BOMBAY HIGH COURT
Waiver of pre-deposit - the learned Advocate for the appellant has pointed out several decisions of the CESTAT, wherein,the CESTAT has granted full waiver of the deposit, as an interim relief, where the facts are similar to the present case - Held that: no substantial question of law has been raised by the appellant and that the CESTAT has not committed any error in directing the appellant to deposit a part of the duty and penalty - Appeal is allowed
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2011 (7) TMI 883 - CESTAT, BANGALORE
Can cement be considered as capital goods for the purpose of Cenvat credit when it is used for foundation/supporting structure for machinery in the light of erstwhile Central Excise Rules, 1944/Cenvat Credit Rules, 2002/2004 - Rajasthan High Court in the case of Union of India v. Hindustan Zinc Ltd. (2008 -TMI - 33137 - RAJASTHAN HIGH COURT) wherein it was held that the cement is used in the construction of foundation and it cannot be said to be eligible capital goods - Decided against the assessee
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2011 (7) TMI 876 - CESTAT, NEW DELHI
Valuation - sale of promotion/POP materials by the appellant to their dealers - Department was of the view that the amount realized by the appellant from their dealers on account of sale of promotional and POP materials and the amount of Rs. 9,14,65,053/- incurred by the dealers on advertisement and publicity of the Appellant’s products, in terms of the Agreement, was part of the transaction value, on which duty was required to be paid and which had not been paid - Since the cost of the promotional/POP materials supplied by the appellant to the dealers is realized from them and these materials are used by the dealers for advertisement and sales promotion of the appellant’s products, this prima facie amounts to dealers bearing the cost of promotional/POP materials used in the advertisement & publicity of the Appellant’s products - Decided against the assessee
Regarding duty demand of Rs. 1,65,19,459 - dealers, during the period of dispute, have incurred an expenditure of Rs. 9,14,65,053/- on the advertisement and promotion of the appellant’s products - As per Appellant’s agreement with their dealers, it is clear that the dealers are under obligation to advertise and promote the Appellant’s products within their area at their (dealers’) expenses - Decided against the assessee by way of direction to deposit the entire amount of duty
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2011 (7) TMI 875 - CESTAT, MUMBAI
Waiver of pre-deposit - appellant was directed to pre-deposit the aforesaid amount within eight weeks from 11.4.2011 - appellant, if aggrieved, could have approached the Hon'ble High Court much earlier than the date on which they actually moved the High Court.Further, when the matter arose before the Bench for report of compliance on 11.7.2011 - Decided against the assessee
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2011 (7) TMI 874 - CESTAT, MUMBAI
Irregular CENVAT credit - Suppression of facts - Held that: the lower authorities did not give any findings regarding the report of Central Excise authorities at the suppliers end in case of the invoices on the basis of which the whole case is built which requires reconsideration In case of shortages of 9.975 M.T. the appellant is aggrieved by the computation of the quantum of the shortages - Decided in favor of the assessee by way of remand
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2011 (7) TMI 873 - CESTAT, MUMBAI
MODVAT credit - The allegation of the department is that the respondent did not file a proper declaration as required under Rule 57G(2) of the Central Excise Rules, 1944 and the respondent cleared the inputs to the job workers without obtaining permission from the concerned authorities - The learned SDR pointed out that they had not declared the final product i.e. the container in the declaration under Rule 57G - Appeal is dismissed
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2011 (7) TMI 869 - CESTAT, KOLKATA
whether the assessee on affixing of bar code on the goods i.e footwear received from their suppliers, would amount to manufacture as per the provisions of Section 2(f)(iii) of the Central Excise Act, 1944 - assessee here is a trader of footwear - It is also undisputed that when the goods are received by the appellant assessee, they do not do any further activity at all, i.e., packing or repacking of the goods or labelling or re-labelling of the footwear - the insertion of bar code does not amount to manufacture and does not attract the provisions of Section 2(f)(iii) of the Central Excise Act, 1944 - Decided in favor of the assessee
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2011 (7) TMI 868 - ANDHRA PRADESH HIGH COURT
Waiver of pre-deposit - Application for stay - primary contention is that the CESTAT, while granting conditional waiver of pre-deposit, did not take into consideration the financial hardship of the Appellant - the twin requirements which Section 35-F of the Act requires the CESTAT to consider are the financial hardship of the Appellant, and the manner in which the interest of revenue is to be protected - While Section 35-G of the Act requires the CESTAT to consider, and form an opinion, whether deposit of duty demanded or penalty levied would cause undue hardship to the Appellant, it does not mandate the CESTAT to waive pre-deposit in every case of undue hardship While Section 35-G of the Act requires the CESTAT to consider, and form an opinion, whether deposit of duty demanded or penalty levied would cause undue hardship to the Appellant, it does not mandate the CESTAT to waive pre-deposit in every case of undue hardship - The order, requiring the Appellant to deposit ₹ 2 Crores, which is less than 15 per cent of the tax and penalty demanded of nearly ₹ 14 Crores, cannot be said to be a patently illegal exercise of discretion by the CESTAT - Appeal is dismissed
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2011 (7) TMI 867 - CESTAT, NEW DELHI
whether the zinc ash and dross emerging during the process of galvanization of steel sheets/pipes would be excisable product and, therefore, dutiable - As rightly pointed out by the learned advocate, the matter relates to period prior to May 2008 and the explanation clause was added to Section 2(d) of the Central Excise Act under Finance Act, 2008 came into force from 10th May 2008 - Apex Court in Tata Iron & Steel Co. Ltd. case wherein it was held that: Merely because such refuse or scum may fetch some price in the market does not justify it being called a by-product, much less an end-product or a finished product - Appeal is allowed
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2011 (7) TMI 866 - CESTAT, NEW DELHI
Cenvat credit in respect of input and capital goods - unaccounted excess consumption of raw materials/inputs - Clandestine removals - According to the Appellant, the cost accountant have not considered the wastage of the raw materials, and if the waste of Rs. 22.84 crores is added to the raw material consumption, cost of Rs. 368.11 crores determined by the Auditors and which does not include waste, there would not be any discrepancy - According to the Department, in view of Cost Accountant’s report, the actual consumption of inputs/raw materials used in the manufacture of the finished goods shown in the books of accounts is much less than that shown in the profit & loss account and the balance quantity of inputs has been used for manufacture of finished goods, which have not been accounted for and have been cleared without payment of duty - Decided in favor of the assessee Regarding cenvat credit demand of Rs. 2,89,12,900 - The dispute here is that while according to the Appellant, the entire credit wrongly taken was reversed during the same financial year, according to the Department, the credit to the tune of about Rs. 1.93 crores was not reversed, as after reversal, the same was taken again - While this point can be examined only at the time of regular hearing, after carefully considering the claims and counter claims of both the sides and examining the records, at this stage, it can be said that on this point, this is not a case for total waiver - Decided in favor of the assessee by way of direction to deposit Rs. 50 Lakhs
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2011 (7) TMI 860 - CESTAT, MUMBAI
Demand - Eligibility certificates for new units for sales tax incentive under Sales Tax Incentive 1988 Scheme or Part-I of 1993 packages scheme as notified by the Government of Maharashtra Resolution dated 30/09/88 or 1998 Power Generation Promotion Policy - Sales Tax Deferral Scheme - Time limitation - CBDT issued a circular No.496 dated 25/09/1987 - As per the circular, if the sales tax laws contain a deeming provision to treat the payment of NPV as discharge of liability towards deferred sales tax, deduction under Section 43B will be allowed for the full amount of sales tax and NOT for the amount of NPV paid - Held that: it is very evident that the deduction towards sales tax is permissible based on the amount billed or charged from the customers in accordance with the law irrespective of the fact whether the amount is retained by the assessee or incentives are given by the State Government to the assessee in respect of the sales tax so collected - apex Court in Paper Products Ltd., Vs. CCE reported in (1999 -TMI - 45222 - SUPREME COURT OF INDIA) held that the circulars issued by the CBEC are binding on the department and the department is precluded from challenging the correctness of the circulars even on the basis that the same is inconsistent with the statutory provision - Decided against the revenue
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2011 (7) TMI 856 - CESTAT, NEW DELHI
Penalty - Option to pay 25% of the duty - Plain reading of the first proviso would reveal that the same is attracted only in cases where the duty amount along with interest determined by the assessing authority is paid within a period of 30 days from the date of communication of the order determining such duty along with 25% of the duty as penalty - Held that: as the facts of the case clearly disclose that the appellants had not paid the entire duty even within the period of 30 days after determination - Decided against the assessee
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2011 (7) TMI 855 - CESTAT, AHMEDABAD
Demand - Commission agent service - In the impugned order learned Commissioner has taken a view that service tax credit for commission agent services is not admissible because it has been given to the dealers and such commission has been claimed as a discount - According to the show cause notice the demand was made on the ground that the services received from selling agents did not have any nexus with the manufacture and clearance of final product from the place of removal and service was beyond stage of manufacture and clearance of goods and therefore cannot be considered as input service - Decided in favor of the assessee
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2011 (7) TMI 854 - CALCUTTA HIGH COURT
Demand - Willful suppression and evasion of duty - Tribunal below by relying upon the decision of the Hon’ble Supreme Court in the case of Padmini Products v. Collector of Central Excise, reported in [1989 (8) TMI 80 - SUPREME COURT OF INDIA]held that mere failure or negligence on the part of the manufacturer to take out licence or pay duty when there was scope of doubt as to whether the licence was required to be taken and there was a scope of doubt whether the goods were dutiable or not, would not attract the provision of Section 11A of the Act - Decided in favor of the assessee Regarding clubbing of clearance - Held that: Tribunal was quite justified in holding that demand by clubbing the clearance of other units without issuing any show cause notice was not sustainable - Appeal is dismissed
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