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Central Excise - Case Laws
Showing 21 to 40 of 260 Records
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2012 (12) TMI 980
Validity of Tribunal's order - whether the Tribunal was justified in allowing the appeal filed by the assessee and thereby, was justified in setting aside of the order passed by the Commissioner (Appeals) - Held that:- since the Tribunal did not advert to the factual aspects of the case in hand in detail and nor gave a clear cut finding of fact as to how and on what basis, the appellant was entitled to claim the benefit of Modvat on the inputs which according to assessee were produced by them and then, sent from one unit to another, in the light of relevant case law and principle of law, we are constrained to allow this appeal and set aside the impugned order passed by the Tribunal for deciding the appeal afresh on merits. The appeal is accordingly remanded to the Tribunal for its decision on merits - Decided in favour of Revenue.
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2012 (12) TMI 979
Cenvat Credit - reasonable steps before availing credit - original manufacturer of fabrics were alleged to be fictitious - endorsed invoices - period of limitation - Held that:- Tax appeal is disposed on the same lines of the decision of this Court in case of Prayagraj Dying & Printing Mills Pvt. Ltd. & Ors. Vs. Union of India & ors (2013 (5) TMI 705 - GUJARAT HIGH COURT). - Decided in favour of assessee.
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2012 (12) TMI 977
Denial of rebate claim - Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 - applicant was clearing goods by availing exemption Notification No. 29/2004-C.E. and 30/2004-C.E. simultaneously - Held that:- Notification No. 30/2004-C.E., dated 9-7-2004 is a conditional notification. The proviso as at para 8 unambiguously states that nothing contained in this notification shall apply to the goods in respect of which credit of duty on inputs had been taken under the provisions of Cenvat Credit Rules, 2004. The applicants had in fact taken Cenvat credit on inputs used in the manufacture of exported goods as declared on the ARE-1’s and had cleared the goods on payment of duty. When the condition of the notification was not satisfied, there was no way the applicants could have availed exemption under Notification No. 30/2004-C.E., dated 9-7-2004.
As such, the applicant though was having an alternative but has stated to have duly maintained the separate account for goods availing of Notification No. 29/2004-C.E. and goods availing of Notification No. 30/2004-C.E. Under such circumstances, Government finds that rejection of applicant’s rebate claim for the reasons stated above is not tenable. The applicant is claiming to have maintained proper Cenvat credit accounts for their clearances of exports after payment of duty which stands duly submitted to the jurisdictional Central Excise office. Applicant has claimed that they were availing actual Cenvat credit on the inputs which are to be used only for the goods to be cleared on payment of duty. This pleading has not been considered by lower authorities especially the certifications from the jurisdictional Superintendent of Central Excise, dated 13-5-2010.
Applicant exporter herein is eligible for rebate in the manner it was granted by the original rebate sanctioning authority subject to verification that applicant had complied with the procedure laid down in C.B.E. & C. Circular No. 795/28/2004-CX., dated 28-7-2004. - Government sets aside both the impugned Orders-in-Appeal and restores the impugned Order-in-Original No. 513/10-11, dated 5-7-2010 subject to condition that applicant had complied with the procedure laid down in C.B.E. & C. Circular No. 795/28/2004-CX., dated 28-7-2004. - Decided conditionally in favour of assessee.
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2012 (12) TMI 976
Waiver of pre deposit - Denial of refund claim - CENVAT Credit - Notification No. 6/2006-C.E. - Held that:- In view of the provisions of the Notification No. 6/2006-C.E. as refund claims of the applicants are already rejected by the lower authorities therefore prima facie we find that the applicants are not entitled for the credit availed of the amount equal to the amount of duty paid in excess in view of the provisions of Notification No. 6/2006-C.E. - applicants directed to deposit 50% of the duty within eight weeks - Partial tay granted.
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2012 (12) TMI 975
Waiver of pre deposit - Opportunity of hearing not granted - Whether the Tribunal was justified in imposing the condition of deposit of ₹ 30 lakhs, in para 8 of impugned order, while allowing the assessee’s appeal and setting aside the order, passed by the Commissioner of Central Excise & Customs, Raipur (Adjudicating Authority), impugned in the said appeal - Held that:- having regard to the controversy involved in the case and the fact that the matter was remanded back to the adjudicating authority, there was apparently no justification on the part of the Tribunal to direct the appellant (assessee) to deposit a sum of ₹ 30 lakhs, in cash, with the adjudicating authority. It was not in dispute that adjudication order was yet to be passed and the matter was remanded only for the purpose of holding enquiry as to whether the assessee was liable to pay the amount demanded from them pursuant to the show cause notice issued by the adjudicating authority. - Let the adjudicating authority give opportunity to appellant (assessee) to file reply to show cause notice under consideration. The reply shall be filed by the appellant (assessee) within two weeks from the date of parties’ appearance before the adjudicating authority on a date fixed by this Court. The Adjudicating authority shall decide the case within three months from the date of filing of reply. No adjournment shall be granted to the appellant (assessee), in case, if they do not file reply to show cause notice within time fixed by this Court. - Decided in favour of assessee.
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2012 (12) TMI 974
Denial of CENVAT Credit - inputs and capital goods used for generation of power - whether the appellant would be eligible for Cenvat credit in respect of inputs and capital goods used in the captive power plant - Held that:- Renusagar Power Plant, which is a captive power plant of the appellant company, together with the cement factory of the appellant company constitute one integrated unit and it is not disputed that except of small quantity of electricity generated being used in the Renusagar township, the remaining quantity is used in the appellant’s factory for production of aluminium. Therefore, the Cenvat credit in respect of capital goods and inputs used in the captive power plant located at Renusagar cannot be denied just because the power plant is located at some distance from the factory.
Since, admittedly, some quantity of electricity generated is used in the township and is not used in the factory of the appellant company for manufacture of excisable goods, to that extent, the input duty credit would not be admissible in view of judgment of the Apex Court in the case of CCE v. Solaris Chemtech Ltd. [2007 (7) TMI 2 - SUPREME COURT OF INDIA]. However, for determining the quantum of input duty credit, which would be inadmissible on this ground, the matter would have to be remanded to the original Adjudicating Authority. - Decided in favour of assessee.
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2012 (12) TMI 973
Denial of rebate claim - Availment of CENVAT Credit - manufacturer exporter accepted the same as mistake and reversed the said availed credit - Held that:- Applicant Exporter as manufacturer was regularly submitting his Central Excise Returns and never suppressed anything, his pleas of above mistake as having been committed inadvertently needs to be considered and his subsequent reversal of that part of inadmissible Cenvat credit should be taken as compliance of applicable provisions of Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004 read with Rule 18 of Central Excise Rules, 2004. Government therefore following the principle as adopted in M/s. Cot Fab Exports [2005 (11) TMI 100 - GOVERNMENT OF INDIA] is of the considered opinion that such a substantial benefit of rebate claim should not be denied once the Cenvat credit stands reversed. - Decided in favour of assessee.
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2012 (12) TMI 972
Denial of rebate claim - During the relevant time duty of said goods was nil as per Notification No. 29/2004-C.E., dated 9-7-2004 as amended vide Notification No. 58/2008-C.E., dated 7-12-2008 - applicant paid duty on the exempted goods - Held that:- As per explanation 1(A) to Section 5(A) of Central Excise Act, 1944 the manufacturer of such goods has no option to pay Central Excise duty since Notification No. 29/2004-C.E., dated 9-7-2004 as amended, issued under Section 5A(1A) of Central Excise Act, 1944 grants unconditional exemption from whole of duty. The duty paid cannot be treated as duty paid under the provision of Central Excise Law. As such, the rebate of said amount is not admissible to the applicant under Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 since exported goods cannot be treated as duty paid goods. - impugned order-in-appeal is upheld to this extent - amount so paid by the applicant is to be treated as voluntary deposit with Government and same is to be refunded in the manner it was initially paid. In the instant case the same was paid from Cenvat credit account and hence government directs that the said amount may be allowed to be re-credited in their Cenvat credit account. - Decided partly in favour of assessee.
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2012 (12) TMI 971
Denial of rebate claim - ARE-1 value was higher than FOB value declared on Shipping Bills - Held that:- Rule 6 is applicable where the ‘price is the sole consideration’. But, in the instant case the applicant received free of cost material, processed them and manufactured the final export product exported the same. While exporting the final export material, they declared conversion charges of converting free of cost material into final export product which they were actually going to realize. The applicant was neither going to realize total cost of final export goods nor the total amount declared in AREs-1 which include value of free material received from foreign party plus cost of conversion. Under such circumstances, if at all there is any amount which is considered of sole consideration, would be cost of conversion and not anything else. The FOB value declared in Shipping Bills which is equivalent to cost of conversion is the transaction value in this case which is realized toward export sale proceeds - The original authority has rightly held that transaction value in this impugned case is FOB value declared in Shipping Bills and rebate of duty payable on said value is required to be sanctioned. Any excess duty paid is required to be refunded in the manner it was paid - Decided in favour of assessee.
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2012 (12) TMI 970
Imposition of penalty - Theft of goods - Clandestine removal of goods - Applicability of Rule 4 - Held that:- Fact of looting/robbery, which also led to murder of security guard of applicant’s factory premise, has not been disputed. As such, the applicant was a victim of theft incident. Under such circumstances, provisions of Rule (4) of the said rules cannot be applied as the applicant, a manufacturer, has not removed the goods unauthorisedly. Further, there is no specific allegation in Show Cause Notice or impugned orders that the goods were removed by the applicant in unauthorised manner from their factory premises. Theft has occurred in spite of taking all possible preventing measures by the applicant. - this is not a case where the applicant has applied for remission of duty under Rule 21 of the Central Excise Rules, 2002. Applicant has already deposited the demand amount of ₹ 49,147/-. In view of this position there is no case for imposition of penalty since there is no clandestine removal of goods by the applicant. As such, Government sets aside the penalty imposed on the applicant - Decided in favour of assessee.
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2012 (12) TMI 968
Denial of rebate claim - applicant exported the goods after more than 2 years from the date on which the goods were cleared from factory - failure to obtain the extension from Jurisdictional Commissioner - Held that:- applicant initially exported the goods covered vide 8 AR4/ARE’s of year pertaining to 1998 and 2000 under bond without payment of duty. However, they failed to export the goods within stipulated time/extended time and paid duty applicable on such goods vide TR-6 challan dated 22-6-2000 and also vide entry in RG 23 Pt. II dated 22-6-2000. Subsequently, in 2003, after receiving fresh export orders, they cleared the goods. The applicant filed rebate claim of duty paid by them vide abovesaid TR-6 challan and entry in RG 23 Pt. II, both dated 22-6-2000. Government finds that the said duty was paid by the applicant for the reasons of failure to export the goods under Bond. It cannot be claimed as rebate under Rule 18 of Central Excise Rules, 2002. However, applicant exported the goods subsequently and is claiming rebate.
Goods are exported after lapse of 6 months period from the date of clearance of goods for export from factory. Applicant has not produced any valid permission from the competent authority to export said goods after 6 months. The applicant has violated the provisions of Condition 2(b) of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 and failed to make compliance of said mandatory condition. Therefore, the rebate claim is not admissible to the applicants under Rule 18 of Central Excise Rules, 2002 r/w Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. - Decided against assessee.
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2012 (12) TMI 967
Denial of rebate claim - benefit of exemption under Notification No. 56/2002-C.E., dated 14-11-2002 - Interest on delayed refund claim - Held that:- Rule 18 of Central Excise Rules, 2002 was amended retrospectively w.e.f. 1-3-2002 to 7-12-2006 vide Section 88 of Finance Act, 2008 allowing rebate of duty paid on excisable exported goods for that portion of duty for which refund has been granted in terms of area based exemption notification to the manufacturer. The said amendment in Rule 18, make such rebate claims admissible during the period 1-3-2002 to 7-12-2006. Government observes that the retrospective validation of admissibility of rebate claims, made the claimant entitled for said rebate claim during the relevant period. The said amendment has not put any bar on payment of interest in terms of Section 11BB for delayed payment of said refund claims. So the time limit provided under Section 11BB for the purpose of computing interest liability has to be adhered to. Interest liability arises when any duty ordered to be refunded under Section 11B(2) is not refunded within three months from the date of receipt of application under Section 11B(1). Since the said amendment has not put any restriction on the payment of interest in terms of Section 11BB, the argument of department that interest will arise after three months of amendment, does not hold good. - interest under Section 11BB becomes payable on the expiry of three months from the date of receipt of the application under sub-section (1) of Section 11B of the Act and any explanation/reasons due to which the delay occurred, will not have any bearing upon the said legal position. Therefore, Government finds no infirmity in the impugned order-in-appeal and upholds the same. - Decided against Revenue.
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2012 (12) TMI 949
Levy of duty on the single ply spun yarn manufactured - Notification No. 214/86-C.E. - Held that:- The Notification No. 214/86-C.E. exempts the goods specified in Col. 2 of the Table annexed to the notification manufactured in a factory as a job work and used in or in relation to the manufacture of final products specified in Col. 3 of the said Table, from the whole of the duty of excise, subject to certain conditions as specified in this notification. As per this notification, this exemption is available subject to the condition that the supplier of the raw materials (principal manufacturer) gives an undertaking to the jurisdictional Asstt. Commissioner having jurisdiction over the job work’s factory, that the said goods manufactured by the job worker shall be used in or in relation to the manufacture of the final products in his factory and duty liability in respect of the same shall be discharged by him. In this case, no such undertaking given by the principal manufacturer has been produced. Moreover, we also find that while the goods manufactured by the appellants are the goods of Chapters 54 and 55, the Col. 2 mentioning the goods manufactured as job work eligible for exemption, does not cover the goods of Chapters 54 and 55. In view of this, the exemption under Notification No. 214/86-C.E. was not available to the single ply yarn manufactured by the appellant out of the fibres supplied by the principal manufacturer - Decided against Assessee.
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2012 (12) TMI 948
Non compliance of pre deposit order - Extension of time for making pre deposit - Held that:- In the light of the foregoing and without burdening our order by giving any finding on any of the issues urged and at the same time upholding all the impugned orders by concurring with the reasoning contained therein we are inclined to allow this appeal in part and while modifying the impugned order dated 30-3-2012, extend the period originally granted by the Tribunal in order dated 18-1-2012 by further period of three months to be counted from the date of this order for deposit of ₹ 50 lakhs either in the Tribunal or with the Department as the case may be. In case if the appellant ensure compliance of order dated 18-1-2012 within three months from today by depositing the required amount of ₹ 50 lakhs and report the compliance report before the Tribunal as directed, then we request the Tribunal to decide the appeal filed by the assessee being Central Excise Nos. 228 to 2291 of 2010 on its merits in accordance with law. Decided partly in favour of assessee.
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2012 (12) TMI 947
jurisdiction of the Tribunal - Maintainability of appeal - Review of decision - Held that:- Present order sought to be amended by the appellant is not order passed under any of the provisions of Central Excise Act, 1944 because nowhere in the law authority is vested for passing such order. When no power is shown from the statute to exercise power of the kind referred in the order sought to be looked into which is neither decision nor order under any of the provision of law for remedial action, there is no appellate jurisdiction exercisable by Tribunal. Therefore, the order passed is correct holding that he being appointed by the Central Board of Excise and Customs which is a creature of the Central Board of Revenue Act, 1963 to implement the administrative direction, he acted as an Administrative Authority accordingly. He made it clear that supervision charges are collected under administrative mechanism and he has not committed any error. He has not exercised power of the adjudicating authority in this case - Decided against assessee.
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2012 (12) TMI 946
Denial of refund claim - Unjust enrichment - Burden of proof - Held that:- Lower authorities have held that assessee has failed to show that duty burden has not been passed on. I find that we are not really concerned with a refund claim of duty which was paid earlier, but claimed as refund subsequently in this case. Appellant had taken credit on capital goods and on objection raised by the Revenue, as a law abiding citizen, appellant reversed it without waiting for adjudication process, but challenged the same and ultimately succeeded at Tribunal level. In this case, therefore, if appellants were to wait for the decision after adjudication process, there may not be even any reversal at all since the appellant’s stand was upheld by the Commissioner (A). In these circumstances, there is no question of unjust enrichment since there was no need for a reversal in the first place. Therefore availment of credit subsequently could not have arisen. Further, after the Tribunal’s decision upholding the availability of credit, appellants could have taken suo motu credit. Since the Tribunal had passed the order in favour of the appellants, when decision of the L.B. was not available, appellants could have taken credit suo motu which also they did not do - Decided in favour of assessee.
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2012 (12) TMI 945
Refund - unjust enrichment - price variation clause - The Department’s stand that in the scheme of things when the goods are sold or cleared for sale on provisional basis at a higher price it has to be assumed that the burden has been passed on to the customer cannot be accepted. - first appellate authority has allowed the refund - Held that:- Ld. Appellate authority crystally found no evidence of unjust enrichment. - there is nothing further to dilate the matter for which Revenue’s appeal is dismissed. - decided in favor of assessee and against the revenue.
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2012 (12) TMI 944
CENVAT Credit - Held that:- Grounds of appeal were perused and nothing demonstrates as to how the appellant made further processing when the goods vanished at the supplier’s hand and not reached to the appellant. Mere paper credit was passed on to the appellant. Plea of cross-examination was modality to follow dilatory tactics to deprive revenue from getting its legitimate dues. - there is no question of admissibility of cenvat credit to the appellant because no goods reached to appellant for further processing at its end - Decided against assessee.
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2012 (12) TMI 943
CENVAT Credit - GTA Services - Held that:- it is not denied that glass cullets have been used in the manufacture of lead oxide and zinc oxide by the appellant. Since the glass cullets are used in manufacture of zinc oxide and lead oxide service tax in respect of GTA services used for transportation of the glass cullets cannot be denied. Therefore, the impugned order denying credit of ₹ 18,661/- in respect of GTA service availed by the appellant for transport of glass cullets is not sustainable and is liable to be set aside - Moreover, even if process undertaken is treated as not amounting to manufacture, since undisputedly the appellant have paid duty on 25 kg. pack, which is more than the cenvat credit availed the payment of duty has to be treated as reversed of cenvat credit as the Department cannot proceed to demand cenvat credit again in respect of input - Decided in favour of assessee.
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2012 (12) TMI 942
Duty demand - Goods cleared without payment under Notification No.6/2006 CE - Benefit of Notification No.67/95 CE dt. 16/03/1995 - Held that:- Notification No.67/95-CE ibid, it appears that the bar created therein is not applicable to the inputs used in or in relation to the manufacture of exempted final products cleared by a manufacturer of such exempted final products as well as dutiable final products. In other words, where the manufacturer manufactures both dutiable and exempted final products and uses the inputs in question in the manufacture of the exempted final products, he is entitled to the benefit of exemption from payment of duty on such inputs in terms of the opening paragraph of the Notification. This right is not hit by the opening portion of the proviso to the Notification as the manufacturer is squarely covered by the exception carved out of the proviso vide clause (vi) under the proviso.
The Department, it appears, would like to drive the assessee out of the purview of this exception on the ground that the latter had not discharged the obligation prescribed in Rule 6 of the CENVAT Credit Rules 2004. We have already held that the assessee did not have any liability under sub-rules (1) to (4) of Rule 6 inasmuch as these sub-rules were not applicable, by virtue of sub-rule (6), to the assessee who were clearing their exempted final products against international competitive bidding in terms of Notification No.6/2006-CE ibid. In other words, a conjoint reading of sub-rule (6) of Rule 6 of the CENVAT Credit Rules 2004 and clause (vi) under the proviso to Notification No.67/95-CE ibid would show that the assessee’s claim for exemption from payment of duty on copper wire under the Notification was not hit by the opening portion of the proviso to the Notification - assessee was not liable to pay CE duty on copper wire manufactured and captively used in the manufacture of insulated (power) cables in the factory during the material period - Decided in favour of assessee.
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