|
Advanced Search Options
Central Excise - Case Laws
Showing 61 to 80 of 177 Records
-
2011 (9) TMI 866
Duty demand - suppression of facts - misdeclaration with intent to evade duty - Held that:- There is no finding as regards the nature of suppression and how provisions of Section 11AC are attracted. The Joint Commissioner in his order-in-original has relied upon the circular issued vide No. 223/57/96-CX., dated 21-6-1996 which laid down the detailed procedure for valuation of the petroleum products - Commissioner (Appeals) has observed that the fact that appellant was not including the same are not brought to the notice of the Department. Further he also relies upon the circular issued by Board No. 354/81/2000-TRU, dated 30-6-2000 to support his contention that in the transaction value any amount which is paid or payable or on behalf of the assessee is to be included but as submitted by the ld. Counsel, there are several decisions relating to the period when Administrative Price Mechanism was followed holding that in view of the Administrative Price Mechanism, the transaction adopted by the Petroleum companies as per the Government directives has to be accepted. This is because in Administrative Price Mechanism the Government determines the transaction value and the margins at different levels with all the relevant issues. Oil marketing companies did not have powers to make alterations. When the price was determined by Government, it would have been unfair to consider other issues - in this case suppression of facts or misdeclaration with intent to evade duty have not been established for imposition of penalty on the assessee - Decided in favour of assessee.
-
2011 (9) TMI 865
Maintainability of appeal - Proper authorisation under law - Difference date of signing - Held that:- The defect appears at page 9 of appeal folder. One of the Commissioners signed the authorisation on 8-6-2009. The other Commissioner signed authorisation on 9-6-2009. This clearly shows that there was no committee on either of the two days by the signatories. Such a cause makes the Revenue non suiter - Such an irregularity by public authorities causes peril to public revenue - Decided against Revenue.
-
2011 (9) TMI 864
Waiver of pre-deposit of duty - Duty on blank CDs alleged to have come into existence prior to their being recorded - Case of the Department is entirely based upon a report of the Chartered Engineer - Held that:- The Department has interpreted the above report to mean that the blank CDs first come into existence and stamper data get transferred from stamper to disc under manufacture. However, the same Chartered Engineer has clearly stated further in his report that nowhere in the process blank CDs are produced/created in the manufacture of recorded audio, video CDs ROM with loaded software. The portion of the report relied upon by the Department is that the data gets transferred from the stamper to disc under manufacture. However prima facie the report cannot be read so as to mean that first blank CDs come into existence on which CDs recording subsequently emerges. We, therefore, find that the assessee has made out a strong prima facie case for unconditional waiver and accordingly, dispense with the pre-deposit of the amount in dispute (duty, interest and penalties) and stay recovery thereof during pendency of the appeals - Stay granted.
-
2011 (9) TMI 863
Waiver of pre deposit - Held that:- SKO refilled by them was contaminated and had flash point below 20.5 degree Centigrade and therefore it could not be cleared as such. It was indicated that it would be mixed with the crude and processed. The Department simply chose to reply saying that they can undertake reprocessing and no permission is required. Even for coming to the conclusion the reprocessing did not amount to manufacture, other than the internal correspondence indicating that SKO was to be reprocessed, no evidence has been shown to us to show that SKO was not mixed with crude and the name does not matter and as regards the document, no doubt it is called invoice but according to Rule 9 of Cenvat Credit Rules the document has to contain the essential details. If conversion/Processing of crude into SKO amounts to manufacture, once SKO is mixed with crude, SKO looses its identification and becomes part of crude. Hence in our opinion processing amounts to manufacture. Proper officer is required to look into the correctness of availment of credit and utilization of all the inputs. This aspect has not been considered. Under these circumstances we consider that appellant has made out a prima facie case for waiver of pre-deposit and for grant of stay, recovery of dues during the pendency of the appeal - Stay granted.
-
2011 (9) TMI 862
Availment of CENVAT Credit - benefit of credit in terms of Rule 16 of the Central Excise Rules, 2002 - Receipt of so-called non-marketable/non-saleable cigarettes returned by their own sales offices only - Held that:- In the face of the clear language of the above rule, the finding of the Commissioner that very first condition for eligibility of credit on returned goods is that the goods must be usable and used as inputs in the manufacture of finished goods is prima facie not tenable. Further, in the present case, a large percentage of tobacco (obtained by ripping open returned cigarettes) is used along with fresh tobacco in the manufacture of fresh cigarettes. Thus, prima facie, the assessees are entitled to credit in terms of Rule 16 and the duty demand is prima facie not sustainable in the light of Rule 16 and in the light of the decision of the Tribunal in Supreme Industries Limited v. CCE, Chandigarh reported in [2005 (7) TMI 164 - CESTAT, MUMBAI] and Hindalco Industries Limited v. CCE, Belapur reported in [2007 (6) TMI 35 - CESTAT, MUMBAI] - Stay granted.
-
2011 (9) TMI 861
Denial of CENVAT Credit - Claim of steel doors as Pollution Control Board - Held that:- Steel doors cannot be considered as an input for medicines, when such doors are used in the store rooms where medicines are stored and have no role in the manufacturing process. I also find that the claim before the Tribunal that steel doors should be considered as a Pollution Control Device is not at all sound. Firstly, the Pollution Control Devices are listed under the inclusive definition of “Capital Goods”.
Schedule ‘M’ to the Drugs and Cosmetic Rules, 1945, which deals with good manufacturing practices and requirement of premises etc., for pharmaceutical products stipulates that in aseptic areas, doors should be of non-shedding material, wooden doors shall not be used. It also states that doors should be made preferably of aluminium or steel material. The same rule also requires walls to be flat, furniture to be smooth and washable etc. Such stipulations do not make steel doors, a pollution control equipment, which has a different connotation. Hence, I am of the opinion that the appellants have not made out a case for availing credit on steel doors either as inputs or as capital goods - Decided against assessee.
-
2011 (9) TMI 860
Waiver of pre deposit - exemption under Notification No. 56/2002-C.E., dated 14-11-2002 - appellants have issued credit notes to their customers in respect of damages to the goods - Held that:- They are paying excise duty to the tune of around Rs. 4 crores per annum. As such, the same assessable value is required to be adopted at the time of clearance of the goods. Compensation given to the buyers in respect of the goods damaged subsequent to the clearance cannot result in lowering the assessable value. We also note that the appellant’s buyers are the ultimate consumers of the goods and no Modvat credit is being availed by them - whatever duty paid by the appellants is refunded to them which is again used for payment of duty on the fresh final product. As such, it can be safely concluded at this interim stage that the entire excise is revenue neutral - we hold that the appellants have a good prima facie case in their favour so as to allow the stay petitions unconditionally - Stay granted.
-
2011 (9) TMI 859
Waiver of pre deposit - Cenvat / MODVAT Credit - Removal of capital goods after use - Method of calculation of depreciation - Held that:- Rule 3(5) required a manufacturer to pay an amount equal to the Cenvat credit demand on the capital goods reduced by 2.5% for each quarter of a year - any prima facie reasons to support the above observations of Commissioner (Appeals). There is nothing in the un-amended Rule 3(5) indicating that straight line method is not required to be accepted - Merely because such straight line method has been specifically mentioned in the subsequent Rule 3(5), it does not mean that the earlier rule was to the contrary, in the absence of the same. In fact, in our views, such subsequent amendment supports, the appellant’s stand that such reduction was required to be done only on straight line method, as intended by the legislation and clarified subsequently by amendment in the law - As also on the issue of revenue neutrality in as much as the capital goods were cleared by the appellant to their sister concern only, who had availed the benefit of the credit of the duty paid by the appellant - Stay granted.
-
2011 (9) TMI 858
Reversal of credit - Inputs destroyed by fire - Availemt of MODVAT Credit - Held that:- Adjudicating Authority has referred to the amended provision of Rule 3(5B) and Rule 3(5C) of Cenvat Credit Rules, 2004, which require an assessee to pay back the amount of Cenvat Credit in case of destruction of inputs in fire or where the inputs are written off. Admittedly the said provisions were introduced w.e.f. 11-5-2007 and 7-9-2007, whereas the fire broke in the appellant’s factory on 7-5-2007. As such, the said relied upon provisions were not available on the date of fire and destruction of the inputs. In such a scenario, the law declared by the Larger Bench in the case of Grasim Industries v. CCE, Indore (2006 (8) TMI 69 - CESTAT,NEW DELHI) would be fully applicable to the facts of the case - Stay granted.
-
2011 (9) TMI 857
Waiver of pre deposit - Duty in respect of soap stock, gums, waxes and fatty acids - exemption Notification No. 89/95-C.E., dated 18-5-1995 - Held that:- Commissioner has already decided an identical dispute in favour of the assessee and Tribunal has not granted stay against the said order, we deem it fit to hold that the appellant has prima facie case in his favour - Decided in favour of assessee.
-
2011 (9) TMI 856
Waiver of pre-deposit and stay of recovery - Duty demand on dumpers manufactured and supplied by the assessee to a construction company for execution of a World Bank-funded project - Bar of limitation - Held that:- at the time of clearance of the goods, the appellant was eligible for exemption under Notification No. 108/95-C.E., ibid. The assessee, apparently, had no doubt regarding their eligibility. The show-cause notice was issued in the light of the aforesaid amendment brought to the said notification on 1-3-2008. This show-cause notice, however, did not allege that the withdrawal/diversion of the dumpers by the construction company upon completion of the project was with the knowledge or consent of the assessee. The only allegation in the show-cause notice was to the effect that the assessee should have taken necessary steps to ensure that the dumpers were not diverted/withdrawn from the project site upon completion of the project. We are afraid, this allegation would not constitute any of the grounds/ingredients embodied in the proviso to Section 11A(1) of the Central Excise Act for invocation of the extended period of limitation. Prima facie, the demand of duty is time-barred. In this view of the matter, we grant waiver of pre-deposit and stay of recovery in respect of the dues adjudged against the appellant - Decided in favour of assessee.
-
2011 (9) TMI 781
Waiver of pre-deposit - whether the enhanced rate of cess would apply to sugar already cleared from the factory after payment of applicable rate of cess on the date of clearance lying in their godown - the appellants are engaged in the manufacture of sugar - sugar was cleared from their factory after 1-1-2008, by paying cess at the rate of Rs. 15/- per quintal. However, the rate of cess was increased with effect from 1-3-2008 from Rs. 15/- per quintal to Rs. 24/- per quintal - Section 3(4) of Sugar Cess Act, 1982 makes it clear that all the provisions of the Central Excise Act and the rules made thereunder shall apply in relation to the levy and collection of said cess - Held that: the appellant has been able to make out a good case in their favour so as to dispense with the condition of pre-deposit of duty and penalty - Stay petition are allowed
-
2011 (9) TMI 780
Offence punishable under Section 9 of the Central Excise Act, 1944 - Application for cancellation of bail granted by the learned Chief Judicial Magistrate - It is contended that the respondents being at large is likely to prejudice a fair investigation, since he is an influential person in the hierarchy of the company who can influence witnesses - The Special PP submits that the offence which the respondent has committed attracts punishment of imprisonment which may extend to seven years and, therefore, is a serious economic offence, affecting the revenue and therefore the learned Magistrate should have seen that the investigation in this case would be hampered by the respondents being at large - Since Sections 13, 19, 20 and 21 are the only sections in the Act which deal with persons arrested, from the reading of these sections it appears that the first option which the officer has is to admit the accused to bail and the second option is to forward him to a Magistrate - The Department had already applied before the learned Magistrate for cancellation of bail on the ground that the respondent had not attended the office of the applicant in terms of the order on which the respondent was bailed out - Needless to mention, the respondent would keep himself in good physical shape so that he does not have any occasion to again breach the order of the Magistrate - Application is rejected
-
2011 (9) TMI 779
Commissioner confirmed demand of duty along with interest against M/s. M.M. Cylinders (P) Ltd. and imposed penalties - appellant-companies are manufacturers of new and empty LPG Cylinders for the oil marketing companies namely, Indian Oil Corporation Ltd., Bharath Petroleum Corporation Ltd. and Hindustan Petroleum Corporation Ltd - As per investigation conducted by the department, the appellant companies were found to have used a front organization, M/s. Sri Mehala Transport, for the purpose of inflating the freight amount and to reduce the assessable value with intention to evade excise duty - the facts of the present cases require to be analyzed to see whether the findings of the Commissioner that the two appellant-companies have deliberately reduced the assessable value by inflating the cost of transportation are correct or not - If the reasons given for charging higher rate by SMT for transport of the cylinders are to be taken as valid, no explanation is forthcoming for sudden dropping of the freight amount from July 2005 onwards - It does not make sense that the appellant-companies who were claiming their business transactions with SMT as if in the normal course of business, could afford to pay amounts of freight in excess ranging from 69% to 258% - The mere fact that the jurisdictional Superintendent of Central Excise might be aware that the SMT has been used for transport of goods and freight was claimed as abatement may not lead to any conclusion to say that the department was aware of intricate manipulation by the appellant-company - Appeals are rejected
-
2011 (9) TMI 778
Interest on differential duty - The learned Counsel for the appellant submits that the liability to pay differential duty arose on account of price variation clause in respect of supplies made to their customers - The price variation is on account of any rise or fall in the cost of labour, on account of raw materials used in the manufacture of parts of towers, on account of changes in the price of zinc and other materials, price of high speed diesel oil, All India Average Consumer Price Index for Industrial workers etc - In the instant case since the appellant clearly knew that the prices are liable to undergo revision, they should have resorted to provisional assessment. On finalization of the assessment, they should have discharged the differential duty liability along with interest thereon as per the provisions of law - In the case of Commissioner of Central Excise v. International Auto Ltd. - (2010 -TMI - 76216 - SUPREME COURT OF INDIA) wherein it has been held that when differential duty is paid after clearance, it indicates short payment/short levy on date of removal. Therefore interest becomes leviable under Section 11AB of the Central Excise Act, 1944 - Appeal is dismissed
-
2011 (9) TMI 777
Condonation of delay - the provisions of Section 35C(2) of the Central Excise Act permits the Tribunal to entertain the application for rectification of mistakes and also can rectify the mistakes apparent from the records at its own - It can be seen from the above reproduced provisions that there is a time limit fixed by the statute for filing of application for rectification of mistake apparent from the record. In this case before us, there is undisputedly a delay of 178 days in filing of application before the bench - Held that: there is a time limit fixed by the statute for filing of application for rectification of mistake apparent from the record - condonation of delay and application for rectification is rejected
-
2011 (9) TMI 776
Job Work - Valuation of goods manufactured by job worker - Rule 10(a) of the Central Excise (Valuation) Rules, 2000 - Revenue’s stand that since the person to whom the goods were transferred i.e. M/s. Sai Flipped Coil Pvt. Limited was not selling the goods but was utilizing the same, the assessable value should have been arrived at in the hands of the present appellant at the rate of 110% of the cost of the goods. - held that:- Rule 8 is applicable to the assessee who manufactures the goods and uses the same captively either by himself or on his behalf. The said Rule would have been applicable if M/s. Sai Flipped Coil Pvt. Limited would have manufactured the goods themselves and then used the same captively. - Decided in favor of assessee.
-
2011 (9) TMI 775
Waiver of pre-deposit - valuation - inclusion of advertisement expenses - undue hardship - held that:- The Tribunal has taken a view on merits in respect of the earlier period that such expenses incurred by the dealers of the Petitioner in promoting sale are to be included in the assessable value/transaction value of the goods. Therefore, the petitioner has made out a case for waiver of the amount of entire duty before its appeal is entertained for the subsequent period. The impugned order of the learned Tribunal while not waiving of pre-deposit, in terms of Section 35F of the Central Excise Act, 1944, of entire duty demanded from the petitioner causes undue hardship to the petitioner.
-
2011 (9) TMI 774
SSI Exemption - Clubbing of clearance - Person liable to pay duty - holding company or subsidiary company - held that:- since our case concerns Notification No. 175/86 and Notification No. 1/93, by mere fact that assessee was a subsidiary of another company, clubbing of clearances was not permissible. We hasten to add that such clubbing may still be open if the department had established that there was mutuality of interest or flowback of funds. However, in the present case even in show cause notice, no such allegations have been made. From the starting, entire case of department revolves around clubbing on account of assessee being a subsidiary of another company. In absence of any notice to the assessee, it would now not be open for the department to pursue such line of reasonings.
-
2011 (9) TMI 725
Cenvat Credit - explosives used outside the factory premises - Held That:- Rule 57A is merely meant to enlarge the meaning of the word `input' and does not in any way restrict the use of the input within the factory premises nor does the said rule 57A require the inputs to be brought into the factory premises at any point of time.
The schemes of MODVAT and CENVAT credit are not different - On the explosives a duty had been paid and the appellants would be entitled to claim credit because the explosives were used for the manufacture of the intermediate product, namely, lime stone which, in turn, was used for the manufacture of cement
........
|
