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Central Excise - Case Laws
Showing 21 to 40 of 176 Records
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2011 (8) TMI 1074
MODVAT credit - Whether the CESTAT is right in allowing modvat credit of duty paid on inputs Furnace Oil/LSHS used in the manufacture of exempted final products? - Held that: - the issue stands decided in the case of The Commissioner of Central Excise, Tirunelveli v. M/s. Rajapalayam Mills Ltd., Rajapalayam & Another in CMA No. 3442 of 2005, dated 28-4-2009 - following the same credit is allowed - appeal dismissed - decided against Revenue.
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2011 (8) TMI 1072
Imposition of penalty u/s 76 & 78 of the FA, 1994 - Service Tax has been paid immediately before the fact of liability was brought to the notice of the assessee - Section 73 of FA - Held that: - Sub-section (3) of Section 73 of the FA, 1994 categorically states, after the payment of service tax and interest is made and the said information is furnished to the authorities, then the authorities shall not serve any notice under sub-section (1) in respect of the amount so paid. Therefore, authorities have no authority to initiate proceedings for recovery of penalty - appeal dismissed - decided against Revenue.
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2011 (8) TMI 1071
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... ... ..... ection 71A. 4. Being aggrieved by the same, the Revenue preferred an appeal before the Tribunal and the Tribunal by order dated 6-3-2008 dismissed the appeal and confirmed the order passed by the Commissioner (Appeals). Being aggrieved by the same, this appeal is filed to consider the identical question of law raised in CEA 75/2007 as raised in this appeal and this appeal was also admitted for considering the said question of law framed in CEA 75/2007 which had been already admitted and when this case was posted for admission on 5-8-2009 said appeal CEA No. 75/2007 was disposed on 29-7-2011 2012 (25) S.T.R. 350 (Kar.) answering the substantial question of law against the revenue and in favour of the assessee and following the reasoning assigned in the said judgment in this case also, we answer the substantial question of law against the Revenue and in favour of the assessee and hold that the appeal is devoid of merit and pass the following order The appeal is dismissed.
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2011 (8) TMI 1063
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... ... ..... VS Srichakra Ltd., Madurai (w.r.t. O-I-A No. 185/06, dated 26-10-2006 passed by CCE (Appeals) Madurai) 2012 (276) E.L.T. 418 (G.O.I.) . In the said order it was held that rebate of duty is not admissible under Rule 18 of CER, 2002, when export goods are manufactured out of both, duty free raw materials procured under Notification No. 43/2001-C.E. (N.T.), as well as duty paid raw material since such goods are required to be exported under bond in terms of Rule 19(1) of Central Excise Rules, 2002 after the amendment of Notification No. 43/2001-C.E. (N.T.) vide Notification No. 10/2004-C.E. (N.T.), dated 2-6-2004. Government therefore, observes that Commissioner (Appeals) has erred in extending benefit of rebate of duty under Rule 18 ibid in this case. As such, Government sets aside the impugned order-in-original and allow the revision application. The impugned order-in-original is thus restored. 13. The revision application succeeds in terms of above. 14. So ordered.
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2011 (8) TMI 1062
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... ... ..... it earlier. At any rate it is not brought out clearly that when he was dealing with the goods he had knowledge that the goods were liable to confiscation under Central Excise laws. The fact that he received goods invoiced by M/s. Unique Industries through an employee of M/s. Guru Deshmesh Engineers and Traders is not sufficient evidence in this regard. If they became aware after, it is not an offence punishable under Rule 209A of the Central Excise Rules, 1944. So we do not find any reason to interfere with the order of the Commissioner (Appeals). 45. So the appeal filed by Revenue is rejected. 46. To sum up the appeals filed by M/s. Akal Engineers, M/s. Perfect Fasteners and M/s. Unique Industries are allowed by setting aside the penalty. The appeal filed by M/s. Guru Dashmesh Engineers and Traders, the appeal filed by M/s. Esteem Electrodes (P) Ltd. and the appeal filed by Revenue against Shri Rakesh Kumar are rejected. (Pronounced in the open Court on 12-8-2011)
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2011 (8) TMI 1056
Restoration of penalty and interest - CENVAT credit on material used of construction of office was the issue - The Revenue did not prefer any appeal against the said finding of waiver - Held that: - When once the Revenue has accepted the order passed by the adjudicating authority and not chosen to prefer any appeal before the CESTAT, it is not open for the Revenue, now to contend that the order passed by the appellate authority is erroneous - appeal dismissed - decided against Revenue.
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2011 (8) TMI 1054
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... ... ..... nd not to this Hon’ble Court, in view of the Division Bench decision of this Court which was rendered subsequent to filing of this appeal in the case of Commissioner of Central Excise-I v. Abinandan Petro Pack Pvt. Ltd., reported in 2011 (267) E.L.T. 579 (Kar.) 2. In view of the above, as this appeal was filed prior to the judgment stated supra, we hold that following the reasons assigned in the judgment passed by the Division Bench of this Court sated supra, this appeal is not maintainable before this Court. Accordingly the appeal is dismissed as not maintainable with liberty to the appellant to file appeal before the Hon’ble Supreme Court under Section 35L of the Act.
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2011 (8) TMI 1006
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... ... ..... d when the same was brought to the notice of the assessee, the same was readjusted and interest was also paid on the wrongful credit. However, thereafter the proceedings have been initiated and original order has been passed imposing penalty and demand duty which was of ₹ 7,800/- and imposing penalty of ₹ 10,000/-. There is concurrent finding by the Appellate Authority and the Appellate Tribunal that the said finding of the Original Authority cannot be sustained and the same is set aside on the ground that as on the date of initiation of proceedings, the violation which was rectified by the assessee by readjusting the credit and also paying interest and therefore no further proceedings can be initiated and the said finding is justified having regard to the facts of the case. 7. In view of the above we hold that, on the facts of the case, the appeal do not give rise to any substantial question of law. Accordingly the appeal is dismissed as devoid of merits.
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2011 (8) TMI 1005
Whether the Tribunal was right in holding that the earlier OIA No. 414/2002, dated 4-7-2002 was in respect of the same claim as the present claim, instead of there being a clear distinction between the two claims which have also been dealt with the OIO?
Whether the Tribunal was right in holding that the extended period of limitation was not applicable to the facts of the present case, as there is no suppression of facts in spite of being pointed out that in the continuous correspondence the unit has deliberately suppressed the facts?
Held that:- It is well settled that the Tribunal is the final authority on the question of fact and even otherwise on perusal of the facts and the order in OIA No. 414/2002-C.E., dated 4-7-2002, we find that the process involved and input were the same. Therefore the order passed by the Tribunal is justified and accordingly we answer the first substantial question of law against the Revenue.
Since we have considered the appeal on merits, it is unnecessary to consider the second substantial question of law. Appeal dismissed.
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2011 (8) TMI 1004
Whether the appellant has proved by way of producing materials that the duty burden has not been passed on to the consumers.?
Held that:- In the present case, the appellant has not discharged their burden therefore in the result, by answering the substantial questions of law against the assessee and in favour of the revenue, we dismiss the Civil Miscellaneous Appeals.
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2011 (8) TMI 1003
Whether the suspension order issued against the respondent was not valid beyond a period of 90 days of its issuance as the petitioners had breached the service rules applicable to the respondent?
Held that:- In any event, in our opinion, the submission that the original application has been filed beyond the period of limitation, is not tenable. This is because the petitioners extended the period of suspension time and again, albeit in breach of the service rules. It was thus a continuing cause of action for the respondent to approach the Tribunal. Therefore, the petitioners have not made out any case for us to exercise our extraordinary jurisdiction under Article 226 of the Constitution of India. Appeal dismissed.
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2011 (8) TMI 1002
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... ... ..... ecovery of ₹ 61,181/- paid by way of duty was rejected and in addition, a sum of ₹ 40,630/- was also imposed as penalty. 5. This factual finding was considered by the Commissioner and it was reversed by the Tribunal by following the judgment of the Apex Court in J. Kon Engineering P. Ltd., reported in 2004 (163) E.L.T. A53 (sic). In our opinion, in view of the subsequent judgment of Apex Court in 2009-TIOL-63-SC-CX 2009 (238) E.L.T. 3 (S.C.), in the event of the claim of the assessee lacking bona fide, the claim for refund on the ground of entitlement of Modvat facility in the event of duty paid after the show cause notice was accepted. Hence the order of CESTAT making avilable such a benefit to the respondent/assessee for the entitlement of Modvat facility and consequently for refund of the duty already paid, after the show cause notice cannot be sustained. Accordingly, the question is answered in favour of the Revenue and the appeal is allowed. No costs.
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2011 (8) TMI 1001
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... ... ..... otherwise in a regular manner can be considered as duty free clearances? 3. It is submitted by the learned counsel appearing for the parties that in view of the decision of this Court in CEA No. 151/2007, dated 9-6-2011, a Division Bench of this Court has held on identical question of law raised that, since the questions involved in the appeal regarding escisability to tax on the gasses which are vented into the air and which is sold to the sister concerns of respondent and whether the exemption granted under the Circular dated 1-10-1996 is available, the appeal lies to the Hon’ble Supreme Court under Section 35-L of the Central Excise Act and the jurisdiction of this Court is expressly barred under Section 35-G of the Central Excise Act. 4. Following the reasons assigned in the said judgment, we hold that the appeal is not maintainable and is disposed of as such, with liberty to the Revenue to file appeal under Section 35-L of the Central Excise Act.”
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2011 (8) TMI 990
100% EOU - exit from EOU scheme to EPCG scheme - Duty demand - demand after calculation of depreciation - Method of calculation - Whether the method for calculation of depreciation prescribed under amending Notification No. 14/2004-C.E. and Notification No. 40/2004-Cus., both dated 26-2-2004 is applicable in this case - Held that:- Sections 21 and 24 of the General Clauses Act are not relevant, as far as this case is concerned. In fact, when a later statute incorporates by reference the provisions of an earlier statute, a repeal of amendment of the earlier statutes does not affect the later statute or provisions incorporated therein. This Rule is subject to the qualification enacted in Section 8, General Clauses Act, which in itself is a Rule of general application. (National Sewing Thread Co. v. James Chadwick & Bros. - [1953 (5) TMI 13 - SUPREME COURT]). Therefore, the method of calculation adopted by the Revenue is held to be incorrect - It cannot be denied that the demand was made within the stipulated period of 1 year without invoking the extended period - Decided against assessee.
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2011 (8) TMI 989
Denial of refund claim - Unjust enrichment - Held that:- there was no such exchange of debit notes and credit notes. Of course, credit notes or cheques were issued by the assessee to their dealers. But the dealers did not reciprocate with debit notes. In this scenario, it cannot be held that the incidence of duty was actually passed on to the dealers. The burden was on the assessee under Section 12B of the Central Excise Act to establish that the burden of duty claimed as refund had been passed on to the buyers (dealers). There is nothing on record to indicate that this burden was discharged beyond the pale of doubt. Clearly, therefore, the bar of unjust enrichment would operate against the assessee - mere issuance of credit notes by a refund claimant (assessee) subsequent to clearance of goods would not obliterate the bar of unjust enrichment - Following decision of S. Kumar’s Ltd. v. CCE, Indore [2003 (2) TMI 85 - CEGAT, NEW DELHI] - Decided in favour of Revenue.
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2011 (8) TMI 988
Reversal of CENVAT Credit - Intention to evade duty - Irregular utilization of CENVAT Credit - Held that:- appellant becomes liable to pay interest on the amount of CENVAT credit reversed by them after taking it wrongly in their CENVAT account and such interest should be paid for the period from the date of taking of the credit to the date of its reversal - liability to pay interest for the delayed payment would not arise unless the credit of duty entered in the account books was duly taken to discharge the duty payable.
No credit was taken at all by the appellant and hence the question of payment of interest does not arise. In this context, it is also pertinent to note that the credit reversed by Unit-I is undisputedly available to Unit-II. Both the units are owned by the appellant. Hence it cannot be reasonably presumed that Unit-I had any intention to evade payment of duty through irregular availment and utilization of CENVAT credit. The finding of the original authority that what was done by Unit-I during the period of dispute could, at best, be an unintended error without mala fides appears to be reasonable - Decided in favour of assessee.
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2011 (8) TMI 987
Abatement of duty - whether for claiming abatement from monthly duty liability on account of closure of unit, provided under Rule 10 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008, the minimum period of closure should be 15 days in a calendar month or whether the assessee can claim the benefit for a continuous period of 15 days not falling within the same calendar month - Held that:- other rules provide for calculation of duty liability and manner of payment of duty to be deposited. The word “month” is not used in Rule 10. Instead the word “period” is used. There is no intendment of the idea canvassed by Revenue expressed in clear words in the Rule. Prima facie, we are of the view that the word “month” is omitted with clear intention that abatement should be allowed for any continuous 15 days. Therefore, prima facie, the appellant has made out a case for waiver of demand confirmed by the impugned order - Stay granted.
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2011 (8) TMI 986
Impleading as party - Held that:- As far as provisions of Section 35B is concerned, the Revenue is the only party in this case and the aggrieved party or person can only appeal against the order of Commissioner (Appeals). In the appeal memorandum, in form EA3, Revenue has impleaded M/s. Rajan Prints as respondent and it is M/s. Rajan Prints to whom the notices have been sent by the Tribunal - Decided against assessee.
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2011 (8) TMI 985
Restoration of application - Pre deposit order not complied - Bar of limitation - whether the appeal can be restored when pre-deposit of amount required to be deposited as per Stay Order has not been deposited by filing application for restoration and further whether such restoration application can be filed without any time-limit - Held that:- appellant was required to deposit amount and report compliance in 5-10-2007 and appeal was dismissed for non-compliance on 5-11-2007. Restoration application was filed on 25-5-2008. Therefore, it can be seen that restoration application in that case had been filed after about 8 months. In this case, restoration application is being filed after 5 years. When there is a decision of the Tribunal refusing to allow restoration application filed after 8 months in the case of Kiritkumar J. Shah v. CCE, Nagpur [2009 (5) TMI 86 - CESTAT, MUMBAI], such a decision is bound to be followed unless distinguishable - Decided against assessee.
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2011 (8) TMI 984
Waiver of pre deposit - Penalty - Held that:- I have not found prima facie case for the appellant/applicant against either of the penalties. During the period from November 2008 to May 2009, they had not paid any amount of duty as per the Rules, but, in their returns, they stated that duty was paid in cash. Prima facie, they mis-represented a crucial fact in the statutory returns. This mis-representation cannot be held to have been made without intent to evade payment of duty. This mis-representation is no different from “mis-statement of fact with intent to evade payment of duty”, which is one of the grounds under Section 11AC for mandatory penalty. Irregular utilization of CENVAT credit in violation of Rule 8(3A) ibid is a fact not in dispute. The amount of duty paid by way of such irregular availment of CENVAT credit has been demanded with interest under Rule 14 of the CENVAT Credit Rules, 2004. On a perusal of the text of the Rule shows that interest is leviable on an amount of duty paid by irregular availment/utilization of CENVAT credit.
Wrong utilization of CENVAT credit virtually created a situation of short-payment of duty on excisable goods. It would thus appear that the CENVAT credit in question was utilized irregularly in violation of Rule 8(3A) of the Central Excise Rules, 2002 with intent to evade payment of duty on excisable goods - Conditional stay granted.
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