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Central Excise - Case Laws
Showing 41 to 60 of 176 Records
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2011 (8) TMI 983
Waiver of pre-deposit - Denial of CENVAT Credit - Credit on CVD - Held that:- Items were used along with the equipment mentioned at serial no. 2 as a trap for tobacco beetles. These beetles are said to be a menace to tobacco (raw material for cigarettes) as well as for cigarettes (final product). It is not in dispute that the cigarette manufacturer has to use the “beetle trap” to drive the beetles away before the raw material is put into the stream of manufacturing activity. This trap is also used in the storage area for the final product. Prima facie, it was an accessory to the cigarette-manufacturing plant. The appellant has claimed CENVAT credit in terms of Rule 2(a)(iii) of the CENVAT Credit Rules, 2004, whereunder accessories of manufacturing plant are seen included as one of the ‘CENVATable’ capital goods eligible for CENVAT credit, defined under Rule 2 - Stay granted.
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2011 (8) TMI 982
Waiver of pre deposit - Denial of credit proportionate to the amount retained as security - input services - Held that:- appellant explains that a small percentage of the contract amounts awarded to different service providers for executing the expansion project of their plant was retained for settlement at the final stage of the contract after verification that all the terms and conditions of the contract has been fulfilled. Their case is that the tax amounts for which credit has been taken, have been paid by the service providers to the exchequer. They rely on Board Circular No. 8771/5/2008-CX., dated 17-1-2008 to justify their claims that they are entitled to take credit of duty paid by the service providers - Stay granted.
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2011 (8) TMI 981
Rebate of duty - Applicability of provisions of Rule 6(3) of the Cenvat Credit Rules 2004 - Notification No 29/2004-CE - Notification No 59/2008 - Different rate of prescribed under both notifications - Simultaneous availment of both notification - Held that:- As per the show cause notice, in respect of the demand amounting to Rs.2,50,81,937/- the cotton fabrics have been exported under bond and, therefore, in terms of Rule 6(6)(v) of Cenvat Credit Rules the demand is unsustainable. As regards the balance amount of Rs.76,81,014/- wherein the cotton fabrics have been exported under claim for rebate of duty it is seen that, at the material point of time, there were two rates of duty applicable to cotton fabrics - one a 'nil' rate prescribed under Notification No 29/2004-CE as amended and the other '4% adv.' prescribed under Notification No 59/2008 dated 07/12/2008 Both these rates were unconditional rates. Therefore, it is not the case that the goods have been completely exempted. When two different Notifications prescribed two rates of duty, the assessee is at liberty to opt for whichever is beneficial to him. It is further on record that the assessee had consulted the department and as per the department's advice, the assessee had opted for payment of duty @ 4% under claim for rebate in respect of exports in some cases. Therefore, it is not a situation where the duty credit on inputs were availed in respect of exempted goods and dutiable goods simultaneously. Hence the provisions of Rule 6(3) of the Cenvat Credit Rules 2004 do not appear to be applicable in the facts of the case - Stay granted.
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2011 (8) TMI 980
Refund of unutilised cenvat credit - Held that:- Following decision of assessee's own previous case in [2010 (2) TMI 538 - CESTAT, AHMEDABAD ] - proviso itself makes it clear that the restriction is applicable only in respect of Cenvat credit claimed as refund and is not applicable to terminal excise duty paid as drawback by under Foreign Trade Policy - EOUs who receive duty paid goods can avail input credit for the duty paid on such goods and utilize the credit for payment of duty on DTA clearances and if for some reasons, the credit cannot be utilized, the same can be claimed as refund under Rule 5 of CENVAT Credit Rules. In addition, as per para 8.3 of Foreign Trade Policy, the supplies to EOUs are treated as Deemed Export. Thus, the manufacturers have the additional facility to claim the benefit of refund of Terminal Excise Duty and deemed Export drawback on such supplies to EOUs. - Decided against Revenue.
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2011 (8) TMI 978
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... ... ..... below denied the claim. Adjudicating authority has ruled out plea of appellant at page 4 of his order holding that the goods in question had neither inevitable necessity nor found integral part of the capital goods. The observation of the appellate authority is that plastic flooring is not eligible for Cenvat credit not being used for manufacture of capital goods. Appellate authority made a finding that plastic flooring starts after final product of the appellant, i.e., when sugar comes into existence fully packed and ready for dispatch. He reduced the penalty while Cenvat credit claim was disallowed. The pleadings of the appellant before authorities below appearing from page 2 of the appellate order, does not appeal to common sense how that the goods in question shall be called as capital goods when that was neither any aid of manufacture nor of was any inevitable necessity to carryout manufacture. Appeal is, therefore, dismissed. (Dictated and pronounced in the Open Court)
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2011 (8) TMI 960
Refund claim - whether the claim for refund of the CENVAT credit facilities should be made before the expiry of the period of one year from the relevant date - Rule 5 of CENVAT credit - there is no specific relevant date is prescribed in the notification No.5/2006-CE(N.T.) dated 14.03.2006 - Held that: - the relevant date should be the date on which the export of the goods was made and for such goods - refund of CENVAT credit is claimed after one year from the date of export - The respondent would rely upon a judgment of the Gujarat High Court reported in (2008 (7) TMI 208 - HIGH COURT GUJARAT ) [Commissioner of Central Excise and Customs, Surat-I v. Swagat Synthetics] - That was a case relating to Sub-Rule (13) of Rule 57F of Central Excise Rules, 1944 - Therefore, the order of CESTAT holding that the limitation is not applicable to the facts in question to the case has to be set aside. - Decided in favor of revenue.
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2011 (8) TMI 957
Search and seizure - Penalty - Confiscation - Director of the appellant Company is in appeal against the personal penalty of Rs. One lakh imposed on him. Learned counsel submitted that penalty under section 11AC of Central Excise Act imposed on the appellant company has also been paid - Having regard to the quantum of duty evaded and attitude of the appellants and facts and circumstances of the case, I consider it appropriate that penalty on the Director has to be reduced and lenient view is required to be taken - penalty imposed on the Director is reduced to Rs. 25,000
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2011 (8) TMI 954
Waiver of pre-deposit - refund - wrongly taking credit suo motto by the applicant – Held that:- applicant was eligible for refund of Rs.25/- lakh was settled way back in 2006 and that the Tribunal vide order dated 3.12.2009 held that the department was not entitled to adjust the interest amount from the refund of Rs.25/- lakh sanctioned on 8.1.2008. It has not been shown by the department that they have challenged the order of the Tribunal dated 3.12.2009 and got it set aside or got it stayed. pre-deposit waived
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2011 (8) TMI 951
Demand of duty, interest and penalty - whether activity of pickling, cutting, drawing and polishing have emerged a new distinct commodity except the conversion of M.S. round into bright bars – Held that:- in the case of Vee Kayan Industries (1994 - TMI - 44247 - SUPREME COURT OF INDIA - Central Excise) M.S. round into bright bars does not amount to manufacture, the same has been clarified by the Board Trade Notice No. 15/2004, dated 16-6-2004. The activity of drawing of M.S. round bars into bright bars is an activity of manufacture has specifically brought into statute book w.e.f. 18-4-2006. Therefore we are concluding that during the impugned period i.e. from 1-4-1994 to 30-9-1995, the activity undertaken by the appellants i.e. conversion of M.S. round bars into bright bars through an activity of pickling, cutting, drawing and polishing does not amount to manufacture. When there is no manufacturing activity, no excise duty is payable. Therefore, the demands are not sustainable, when demand are not sustainable, the question of demanding interest and imposition of penalty also does not arise. Therefore the impugned order is set aside. The appeals are allowed
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2011 (8) TMI 946
Non printing of MRP on footwear - exemption upto Rs. 125/- per pair - Notification No. 6/02 as amended by Notification No. 23/04 dated 9-7-2004 and Notification No. 5/06, dated 1-3-2006 introduced w.e.f. 9-7-2004 - The case of the Revenue is that as per the conditions of the above mentioned notifications, the footwears having sale price not exceeding Rs. 125/- per pair are entitled for full exemption - It is also submitted that as per the instructions issued by the Board, the footwear is to be treated as manufacture for the purpose of column 4 of RG-I as soon as the uppers and soles are assembled and joined - In the present case as 18061 pairs found in fully finished condition in the factory without printing of retail sale price hence the appellant availed the benefit of notification wrongly for the past period i.e. from 9-7-2004 - The Revenue only confiscated 18061 pairs which were not marked with retail sale price - Held that: footwears were still in factory and from the statement of excise clerk that there are some technical difficulties in printing the MRP it cannot be concluded that the shoes under seizure were going to be cleared without printing the MRP - Appeal is allowed
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2011 (8) TMI 931
An assessee under the Central Excise Act, 1954 suffered an adverse order dated 29-3-2007 passed by CCE(A), Jaipur in appeal No. 265 (HKS)CE/JPR-11/2007 - Revision petition before the central government - Notice of this petition was served upon the respondents i.e. Ministry of Finance and Commissioner of Excise - The need to remand has occasioned for the reason that admittedly during pendency of the revision petition before the Government, the petitioner by their letter dated 24-12-2009 (Annex. P/9) had submitted additional documents in relation to the proof of export of the material which was subject matter of the controversy - Held that: finding recorded by the revisional authority is based on non-consideration of the additional documents sent by the petitioner vide their letter dated 24-12-2007 - Decided in favor of the assessee by way of remand to revisional authority
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2011 (8) TMI 930
Notification No. 56/2002-C.E., dated 14-11-2002 - The exemption available under this notification is the amount of duty paid by the assessee other than the amount paid by utilization of Cenvat credit under the Cenvat Credit Rules, 2002 - In this case, the respondent on 11-12-2006 produced a certificate from the designated authority certifying that they have undertaken substantial expansion resulting in 25% increase in regular employment - In terms of para 3 of the Notification No. 56/2002-C.E., the exemption under this notification is also applicable to the existing units, which have undertaken substantial expansion by the way of increase in installed capacity by not less than 25% substantial expansion, resulting in not less than 25% increase in regular employment on or after 14-6-2002 - When the duty in respect of clearances made during whole of December 2006 was payable only in the next month and during December 2006, the respondent was eligible for benefit of Notification No. 56/2002-C.E., in our view the benefit of this exemption cannot be restricted only to the clearances made from 11-12-2006 - Decided in favor of the assessee
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2011 (8) TMI 929
Notification No. 108/95-C.E., dated 28-8-95 - As the certificate was not issued in the name of the assessees, the department was of the view that the conditions of the notification were not fulfilled and accordingly, issued two show cause notices both dated 19-11-2003 proposing recovery of duty of Rs. 53,03,047/- as result of denial of benefit of the notification was issued - The agreement clearly brings out that M/s. MFIL, to whom a contract had been awarded by the United Nations World Food Programme for supply of fortified biscuits to Afghanistan, had engaged the respondents to manufacture such biscuits and supplied them to the United Nations World Food Programme - the certificate issued by the project implementing authority under Notification No. 108/95 is not necessarily required to be in the name of supplier of the products used in the project, are directly applicable to the facts of the present case - Decided in favor of the assessee
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2011 (8) TMI 928
Chewing Tobacco - MRP based duty u/s 4A - Rule 34 of Standards of Weights and Measures (Packaged Commodities) Rules 1977 - Appellants say that the goods were sold by weight and only individual pouches were meant for retail sale and the multi piece packages were not meant for retail sale. - held that:- MRP is indicated for the multi-piece package was indicated on the multi-piece package showing the clear intention that such multi-piece package also was intended for retail sale. - So in the case before us the Appellant was required under law to declare MRP on the multi-piece package and the Appellant was doing so. Further this commodity was notified for levy of excise duty based on valuation as per section 4A of the Central Excise Act. Thus both the legal requirements for applying section 4A were satisfied and hence Central Excise duty should have been paid adopting the value as per section 4A.
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2011 (8) TMI 927
Stay - revenue neutrality - adjustment of the excess duty stated to have been paid for the period January 2006 to March 2006 towards short payment for the period from April 2005 and December 2005. - dispute about non-applicability of the principle of unjust enrichment. - assessee contended that the excess duty paid by the appellant being entitled for availing the credit and the payment of duty is by one unit whereas the availment of the credit is by another unit of the same appellants, the entire process is actually revenue neutrality. - held that:- merely because the assessee paid duty subsequent to the date even though the appellants are entitled for credit for such payment of duty that does not result in revenue neutrality. As such, payment of duty after the last due date for the same does not wipe out the liability to pay interest. Being so, unless it is shown that at the time of payment, the entire duty amount along with interest stood paid, the question of application of revenue neutrality cannot arise. In none of the decisions sought to be relied upon this aspect has been considered. Merely because the principle is stated to have been applicable that itself does not amount to laying down the law. - Appellant directed to pre-deposit 60%.
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2011 (8) TMI 926
Cenvat credit - On verification by the departmental officers it was found that the supplier did not have necessary infrastructure to manufacture and supply the goods and on that basis an alert notice was issued - The Cenvat credit has been denied and penalty has been imposed on the ground that the supplier did not have the infrastructure for manufacture of the goods - It also emerges that during the period supplier was a registered central excise assessee and was paying duty on the goods supposed to have been manufactured by them and there is no indication that the duty paid by the supplier was less than the Cenvat credit availed - The very fact that the supplier was in existence for 15 years, had availed Cenvat credit of more than Rs. 18 crores would show that the supplier did have some standing in the market - once it is held that there was no suppression or mis-declaration on the part of the appellants and no penalty is imposed on them, duty demand invoking extended period also cannot be sustained if challenged - Appeal is allowed
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2011 (8) TMI 898
Demand - Time limitation - Supreme Court in the case of CCE v. M.M. Rubber Co. reported in (1991 -TMI - 42988 - SUPREME COURT OF INDIA), wherein in para 13 of the judgment, Hon’ble Supreme Court has held that Courts have uniformly laid down as a rule of law that for seeking the remedy, the limitation starts from the date on which the order was communicated to a party or the date on which it was pronounced or published under such circumstances that the parties affected by it have a reasonable opportunity of knowing of passing of the order and what it contains, that the knowledge of the party affected by such a decision, either actual or constructive is thus an essential element which must be satisfied before the decision can be said to have been concluded and binding on him, and that in view of this, it is the date of communication which has to be treated as the relevant date for counting limitation period and since the order had been received on 27-1-2007 and the refund claim has been filed on 24-1-08 and the same was within time - Decided in favor of the assessee by way od remand
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2011 (8) TMI 896
Clandestine removal - Whether the order of the Tribunal can be held as legal & proper where penalties imposed under Section [(sic) Rule] 25 of Central Excise Rule, 2002 & U/R 13 of the Cenvat Credit Rule, 2002 have been vacated - Tribunal has found that there is no material or evidence of any kind to support the findings, that there was clandestine removal, which did not tally with the physical stock - Appeal is dismissed
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2011 (8) TMI 895
Waiver of penalty - Rules 15 of the Cenvat Credit Rules, 2004 - Tribunal has not committed any error in finding that no penalty could be imposed in the case, as there is conflicting opinion of the benches of the Tribunal, on account of which, it could not be said that Cenvat Credit in respect of input or capital goods was wrongly taken or in contravention of any of the provisions of the Rules - Appeal is dismised
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2011 (8) TMI 882
Demand - Spent Sulphuric Acid - Rule 57CC of the Central Excise Rules, 1944 - eight per cent duty is provided only in case where there are more than one final products categoriesed in Rule 57CC, as second category of final product and that the process of manufacture is such in which the inputs in any final product cannot be easily determined or computed and separate inventory and accounts of the receipt and use of inputs cannot be maintained - Appeal is dismissed
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