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Central Excise - Case Laws
Showing 41 to 60 of 177 Records
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2011 (9) TMI 900
Denial of refund claim - Unjust enrichment - Held that:- Payment of duty, interest and penalty was in pursuance of an order passed by the adjudicating authority earlier. Once that order is set aside, the refund is automatic. Merely because the adjudicating authority is yet to adjudicate the exigibility of tax, is no ground to refuse refund. When once the Appellate Commissioner on consideration of the material on record has held that there is no unjust enrichment and therefore the assessee is entitled to get back duty, interest, penalty paid in pursuance of an earlier order by the adjudicating authority which is now set aside, the said order is legal and the Tribunal was justified in upholding the said order - Decided against Revenue.
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2011 (9) TMI 899
Validity of ZTribunal's order - Held that:- Assessee had not contested the duty demand of ₹ 12,395/- as confirmed by the Commissioner (Appeals), because on these basis, the appeal of the Department and the cross-objection of the assessee were disposed of. Tribunal omitted to consider the department’s appeal on merits. Only on the assessee not contesting the Commissioner (Appeals) order and thereby not pressing, his cross appeal would not permit the Tribunal to dismiss the Department’s appeal as well. The appeal of the Department was to challenge that portion of the Commissioner (Appeals) order which was adverse to the department. Such appeal had to be examined on merits - matter remanded back - Decided in favour of Revenue.
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2011 (9) TMI 898
Imposition of penalty - Appellate Authorities set aside the penalty imposed on the assessee on the ground that he had paid duty with interest and there is no fraud, suppression as the excisable goods was transferred by way of stock transfer - Held that:- Penalty is leviable only on the conditions which are set out in the section being fulfilled. If two authorities on appreciation of entire material on record concurrently held that those conditions are not fulfilled and that being a pure question of fact, we do not see any error to interfere with the order - Decided against Revenue.
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2011 (9) TMI 897
Manufacture - Assessee engaged in the manufacture of brass strips, phosphor bronze strips and copper strips falling under chapter sub-heading 7409 21 00, 7409 11 00 and 7409 31 00 respectively. The Commissioner confirmed demand of ₹ 3,50,33,094/- under Rule 14 read with proviso to Section 11A as irregular credit availed by it - Tribunal held that demand barred by limitation - Held that:- departmental authorities are fully aware of the activities undertaken by the assessee during the material period. It had periodically filed returns relating to receipt of inputs and availment of Cenvat credit. It had also filed periodical returns showing payment of excise duty on its final products. Authorities never raised objection to the assessee taking and utilizing Cenvat credit during the material period for payment of duty on its final products as reflected in the monthly ER-1 returns. Therefore, the impugned demand invoking larger period under Rule 14 of the Cenvat Rules read with proviso to Section 11A is not sustainable. The Revenue has not made out a case that the assessee had suppressed any relevant fact from the department or took the Cenvat credit of duty paid with an intention to evade payment of duty on final products - as the demand was made beyond the period of one year, it was clearly barred by time - Decided against Revenue.
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2011 (9) TMI 893
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... ... ..... other words, all the objections which are available for being raised at a later stage if occasion so arise can always be raised by the appellant on law. Accordingly and in the light of foregoing discussion, we are inclined to dismiss this appeal in limine, for want of any substantial question of law arising in the case. Before parting with the case, we are constrained to observe that the appellant has filed certified copy of the impugned order which contains several markings in it. To say the least, it is not permissible by any canon of rules. It is expected of the parties, be that appellant or respondent, to only file documents (pleadings), which are clean, legible, properly typed and does not contain any marking, either in hand-writing or otherwise. It is hoped that the appellant, which happens to be a Government of India Department (Customs and Excise Department), would take these observations in letter and spirit and will ensure proper filing of appeals in future.”
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2011 (9) TMI 892
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... ... ..... aring both sides, I do not find any merit in the submission of the assessees that some unauthorized person has received the copies of the Orders-in-Original. Since adjudication orders were, admittedly, received by the factory of the assessees on 9-12-2009, I see no reason to interfere with the impugned orders dismissing the appeals on the ground of time-bar. The appeals before the Tribunal are therefore dismissed. The stay applications are also accordingly dismissed. (Dictated and pronounced in open Court)
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2011 (9) TMI 891
Exemption from payment of duty under Sl. No. 14 of the Notification No. 6/2002-C.E., dated 91-3-2002 - Interest u/s 11AB - Why the exemption specified at Sl. No. 14 of Notification No. 6/2002-C.E., dated 1-3-2002 as amended should not be denied to the impugned Products, which was manufactured by the assessee under the brand name of MTR and classified under Chapter sub-heading 21069099 (under sub-heading 2108.99 up to 28-2-05) as miscellaneous edible preparations.
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2011 (9) TMI 890
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... ... ..... has been distinguished in the present appeal, nor has the appellant-Revenue brought on record any better case law. The impugned order is affirmed and the appeal is rejected. 4. A reading of the said order shows that except the finding as to the examination of records and hearing both sides, there is no discussion by the CESTAT as to the above question raised by the Revenue, which is more vital for determination of the issue raised and to find out whether the assessee is entitled to MODVAT credit facility or not for the electricity generated and exported to the Tamil Nadu Electricity Board. 5. In view of the above, without expressing any opinion on merits, we remit the matter to the CESTAT for fresh consideration of the above issue and pass appropriate orders in accordance with law. We also made it clear that the grounds raised in the appeal shall be independently considered by the CESTAT. 6. The Civil Miscellaneous Appeal is disposed of accordingly. No costs.
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2011 (9) TMI 878
Respondent manufactured tools and dies for a customer and used the same in their own factory for manufacture of components for the same customer - Respondent recovered the price of such tools and dies from the customer by raising a commercial invoice - Respondent was availing the benefit of service tax paid on GTA services for outward transportation of their finished goods - Commissioner (Appeals) in the impugned order has held that respondent need not pay duty on tools, dies and fixtures and Cenvat credit is admissible - Held that:- As regards duty, liability on tools, dies and fixtures, Notification No. 67/95-C.E., dated 16-3-1995 exempts capital goods as defined in Cenvat Credit Rules, 2004 manufactured in a factory and used within the factory of production. The notification does not speak of any ownership. It is an unconditional exemption which provides exemption to capital goods manufactured in a factory and used within the factory - Once goods are manufactured and used in the same factory, the notification squarely applies - Following the decisions of the Tribunal in the case of BPL Electronics Ltd. v. CCE, Bangalore reported in [1994 (3) TMI 190 - CEGAT, NEW DELHI], Elcon Clipsal India Ltd. v. CCE, Ahmedabad reported in [2002 (9) TMI 140 - CEGAT, COURT NO. II, NEW DELHI] - Decided against Revenue.
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2011 (9) TMI 877
Waiver of pre-deposit - CENVAT Credit - Penalty under Rule 25 - Whether any penalty was liable to be imposed on the party under Rule 25 - Held that:- Prima facie, only one of the clauses (a), (b), (c) and (d) has a nexus with Section 11AC and the same is clause (d) which reads thus : “contravenes any of the provisions of these rules, or the notifications issued under these rules, with intent to evade payment of duty”. Therefore, if a manufacturer, producer, registered person or registered dealer, as the case may be, is found to have contravened any of the Central Excise Rules or any of the Notifications issued under those rules, with intent to evade payment of duty, he will attract a penalty under Rule 25 subject to the provisions of Section 11AC. In my view, this would only mean that, if a penalty has already been imposed on the party under Section 11AC, no further penalty shall be imposed on him under Section 25 on the ground of the contravention mentioned in clause (d) ibid. In the present case, no penalty was even proposed under Section 11AC on the appellant. Rule 25, therefore, would get attracted, unaffected by Section 11AC, in the present case inasmuch as the appellant admittedly committed default of payment of duty and also chose to utilize CENVAT credit for payment of duty on their final product in contravention of Rule 8(3A). Prima facie, therefore, the appellant should make a pre-deposit - Decided against assessee.
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2011 (9) TMI 876
Classification of goods - CETH 2404.99 or 3306.10 - Shaheen Bhajki Masheri - Held that:- Following decision of Global Impex Versus Commissioner of Customs (Export), Nhava Sheva [2011 (7) TMI 933 - CESTAT, MUMBAI] - product “Shaheen Masheri” was correctly classified by the appellant under Chapter Heading No. 3306.10 - Decided in favour of assessee.
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2011 (9) TMI 875
Duty demand - Penalty - Confiscation of seized goods - Clandestine removal of goods - Onus to prove - Held that:- In a case of clandestine activity involving suppression of production and clandestine removal, it is not expected that such evasion has to be established by the Department in a mathematical precision. After all, a person indulging in clandestine activity takes sufficient precaution to hide/destroy the evidence. The evidence available shall be those left in spite of the best care taken by the persons involved in such clandestine activity. In such a situation, the entire facts and circumstances of the case have to be looked into and a decision has to be arrived at on the yardstick of ‘preponderance of probability’ and not on the yardstick of ‘beyond reasonable doubt’.
Claim that if they procured raw materials, then they might be eligible for MODVAT credit to the tune of about Rs. 1.25 crores may be true. We have already held that the appellants have indulged in suppressing production and clearing the same without payment of duty. However, the benefit of MODVAT claim cannot be considered and allowed in the absence of duty paying documents for procurement of the raw materials. It is not as if that the raw materials could be procured only from duty paying sector - Duty demand penalty imposed is reduced - Decided partly in favour of assessee.
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2011 (9) TMI 874
Duty demand - shortage found as well as the excess stock found in the factory - Redemption fine and penalty u/s 11AC - Held that:- appellant is not challenging the excess or shortage found and duty liability thereon. He submits that as regards excess quantity found in the factory, the same had not been removed from the factory but was only found to be in excess. Therefore, demand of duty in the adjudication order was not correct. The duty liability is attracted only when the goods are removed from the factory. After provisionally released, the goods were taken into daily stock account and cleared on payment of duty. Therefore duty demand in the proceedings amounts to double taxation of the same goods and as already submitted no duty could have been demanded on the excess quantity found in the factory - Accordingly, the duty demand on the quantity found in excess in the factory is set aside - Penalty and redemption fine is reduced - Decided partly in favour of assessee.
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2011 (9) TMI 873
Interest demand u/s 11AB - Penalty under Rule 25 of the Central Excise Rules, 2002 - Held that:- It cannot be gainsaid that the duty payments were made under Section 11A(2B) of the Central Excise Act. This is because each payment of differential duty at depot was tacit admission of short-payment of duty at factory gate. The duty short-paid was self-determined by the assessee and voluntarily paid before issuance of any show-cause notice to them - assessee was working under sub-section (2B) of Section 11A of the Act - assessee has a liability to pay interest on the differential duty under Section 11AB. But Explanation 3 protects them from penalty. Though explanation was inserted only in 2010, it is a clarificatory provision having retrospective effect and, therefore, the appellant can claim under it - demand of interest on differential duty is sustained and the penalty is set aside - Decided partly in favour of assessee.
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2011 (9) TMI 872
Deduction on account of trade discount, quantity discount, distribution expenses, turnover tax, interest on receivables, breakages in their price declaration - Held that:- in the respondents’ own case [2011 (4) TMI 544 - CESTAT, MUMBAI], for the earlier period, the Tribunal has allowed the claim of the respondents for free replacement of breakages and the said order has been accepted by the Department - in respondents’ own case, the issue has been decided in favour of the respondents and the same has been accepted by the Department. Therefore, the principles of res judicata is applicable and it is no doubt that after the decision in the case of M/s. Surya Roshni (2000 (9) TMI 71 - SUPREME COURT OF INDIA) the respondents are not entitled to deduction on account of free replacement of breakages. As the principles of res judicata is applicable in the case of the respondents - Decided against Revenue.
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2011 (9) TMI 871
Confiscation of goods - raw materials found stored in the adjoining godown of the factory premises - Held that:- Admittedly there was no shortage or excess of raw materials in the factory of the appellants at the time of visit of the officers. The raw material which stands confiscated by the authorities below was being stored in an adjoining godown of the appellants. Admittedly, the same has not reached the factory premises and the appellants had not availed the credit in respect of the same. The lower authorities by referring to the provisions of Rule 25, have imposed penalty upon the appellants under Rule 26. On going through Rule 25, I find that neither of the sub-clause of said rule gets invoked.
The lower authorities have not referred to any provision of law requiring the assessee to account for the raw materials which might have been purchased by him and stored outside the factory premises of the appellants. I do not find any justifiable reason to either confiscate the said seized raw materials or to impose penalty upon the appellants. Accordingly, the impugned order are set aside - Decided in favour of assessee.
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2011 (9) TMI 870
Duty demand - Penalty - Commissioner set aside demand and penalty - Remand order had not been implemented inasmuch as cross-examination was not given - Held that:- submission of Shri C.N. Ramesh is crucial for the confirmation of the demand against the appellants and, therefore, he should have been allowed to be cross-examined - Be that as it may, the fact remains that the direction given in the remand order by the Tribunal was not implemented for whatever reason. The remand order of the Tribunal does not stand modified in any manner. Therefore, the Commissioner (Appeals) is correct in his finding that non-implementation for the remand order has resulted in violation of the principles of natural justice - Decided against Revenue.
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2011 (9) TMI 869
Modification of Final Order - Setting aside of penalty order not mentioned in final order - allegation of suppression of facts attracting the larger period for demand of duty was held not sustainable - Held that:- The final order passed by this bench indicates that the penalty-related issue was not debated, nor in fact was it open to debate. This was because the findings of the learned Commissioner (Appeals) were correctly understood by the bench and it was clearly held that the assessee was not to be penalized where the allegation of suppression of facts, levelled against them, was set aside by the Commissioner (Appeals) and that view was not appealed against by the Revenue. Learned Commissioner (Appeals) had clearly held that the allegation of suppression of facts was not sustainable in the facts and circumstances of the case and he did not direct the lower authority to impose any penalty on them consequent upon requantification of duty demand - Modification allowed.
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2011 (9) TMI 868
Interest on delayed refund - Unjust enrichment - Held that:- claim for refund was filed on 26-3-2002 and the legal position is that the three months’ period for grant of refund is to be calculated from the date of making an application for refund and not from the date of sanction subsequently. This is the view taken by the Tribunal in several cases including that of the same assessees as seen from - [2008 (3) TMI 191 - CESTAT, CHENNAI]. Since the refund was sanctioned only in Oct.’10, while the claim for refund was made on 26-3-2002, there is no dispute that there is an inordinate delay in grant of the refund, thereby justifying the assessee’s claim for interest on the refund amount for the period from 26-6-2002 to 29-10-2010 (i.e., from the expiry of three months from the date of filing the refund claim till the date of payment). I, therefore, set aside the impugned order as I hold that the assessees are entitled to interest for the period from 26-6-2002 to 29-10-2010 - Decided in favour of assessee.
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2011 (9) TMI 867
Duty demand - Circular No. 306/22/97-CX., dated 20-3-1997 - Exemption under Notification No. 214/86-C.E., dated 25-3-1986 - Held that:- Circular No. 306/22/97-CX., dated 20-3-1997states, that duty liability is dischargeable by manufacturer of final goods and not by job worker if the goods are received for job work under Rule 57F(4) of Central Excise Rules, 1944. The Circular is subordinate to the legislative mandate incorporated in Notification. Therefore, the Circular is to be read in same spirit as the law requires. When the appellant claims to be benefited from Circular the date of effect of Circular is 20-3-1997. The appellant operated for the year 1993-94, we are unable to extend the benefit claimed by appellant in terms of Circular since circular deals with no Cenvat credit enjoyable by a Job Worker where duty liability is of manufacturer - Intention of the legislature when conveyed from a specified date that cannot be read as to have retrospective effect - Following decision of C.C.E v. Sunwin Technosolution Pvt. Ltd. [2010 (9) TMI 71 - SUPREME COURT OF INDIA] - Decided against assessee.
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