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Central Excise - Case Laws
Showing 21 to 40 of 80 Records
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2012 (2) TMI 481
Interest – provisional assessment - differential duty was paid prior to the date of final assessment - Held that: - the issue decided in the case of COMMISSIONER OF C. EX., NAGPUR Versus ISPAT INDUSTRIES LTD. [2010 (10) TMI 178 - BOMBAY HIGH COURT], where it was held that assessee is not liable to pay interest - appeal dismissed - decided against Revenue.
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2012 (2) TMI 479
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... ... ..... ransported. On scrutiny of the bank statement it was observed that out of a total amount of the goods valued at an amount of ₹ 15 crores, 723 cheques of ₹ 8.84 crores were cleared from the accounts of the appellant to the account of M/s. Jindal Stainless Ltd., Hisar. The adjudicating authority recorded finding that there was a well planned act to default the government exchequer for which the company is liable for severe penal action. In the circumstances, we do not find that the CESTAT committed any error in directing the appellant to deposit ₹ 40 lakhs, which is about 1/2 of the total demand as pre-condition for hearing of the appellant. The appellant does not have a good prima facie case and further it has not pleaded any hardship to deposit the amount. 9. The writ petition is dismissed. 10. Learned counsel for the appellant prays for and is allowed one month’s time, in addition to the time allotted by the Tribunal, to deposit the amount.
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2012 (2) TMI 475
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... ... ..... ppeal is admitted. Tag with Civil Appeal No. 3234 of 2011.
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2012 (2) TMI 474
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... ... ..... f the Tribunal can undoubtedly form the subject matter of an appeal which is available in law. 3. In this view of the matter, we are of the considered view that it would be inappropriate for this Court to exercise its writ jurisdiction under Article 226 of the Constitution when an appeal admittedly lies against the decision of the Tribunal. Though there is no absolute bar to the maintainability of a petition under Article 226, a self imposed rule of restraint requires the Court to relegate the parties to the remedy of a statutory appeal when an appeal is provided under the law. This circumstance is coupled with the requirement of judicial propriety when, in a situation such as the present, the appeal lies before the Supreme Court. We accordingly decline to exercise writ jurisdiction under Article 226 only on this ground leaving it open to the petitioners to pursue the remedy available in appeal. The Petition is accordingly dismissed. There shall be no order as to costs.
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2012 (2) TMI 473
Clandestine removal - it was alleged that appellant were indulged and clearing part of their finished products by issuing private challans and without issuing proper invoices - entire allegation of Revenue is based uopn statements of various persons, pen drive, production reports of lab assistants and Challans and party-wise statements.
Held that: - the directors have accepted their role and that there was a clandestine clearances, the said statement should be considered from the point of the factual matrix of whether the said clandestine removal could be proved from the evidences on record or not.
Retracted statement cannot be relied upon for establishing charge of clandestine manufacture and clearances against the assessee - Hence the statements of buyers and suppliers need to be discarded as evidences.
Evidences relied upon by the Adjudicating Authority on the production reports of the lab assistants, challans and party-wise statements - Held that: - the said challans and production reports of the lab assistants could have no effect on the face of fact that the appellants manufacturing capacity was far less as recorded - when there is no evidence of clandestine manufacture, acknowledgment of the receipt of the goods from the appellants by the buyers, we find that evidences on record do not support the case of Revenue.
The impugned order is not able to establish that there was a clandestine manufacture and clearance of the finished goods from the factory premises of M/s. FPML - appeal allowed - decided in favor of appellant.
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2012 (2) TMI 472
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... ... ..... on the point is proper and just. As such, we hold that before adjudicating the remanded proceedings, a proper show cause notice would be issued by the concerned officer raising the demand, disclosing the reason for the same along with legal provision etc. The appellant would be given an opportunity to put forth their defence and to cause appearance in person. Their appeal is disposed of in the above terms. 7. As regards, the Revenue’s appeal, without going into the legal issue, as to whether the Commissioner (Appeals) has power or not, we find that as we have already directed the lower authority to re-adjudicate the matter after proper observance of process of law, we hold that the impugned order of Commissioner (Appeals) remanding the matter is not to be set aside on the said ground. Accordingly, Revenue’s appeal is rejected. 8. Stay petition as also both the appeals are disposed of in the above manner. (Order dictated and pronounced in the open Court)
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2012 (2) TMI 470
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... ... ..... orized agent” of the person for whom the order is meant for. The Consultant appearing before the Commissioner (Appeals) is authorized only to advance arguments before the appellate authorities and to defend the appellant. There is no authorization to the Consultant for receiving the order in question. Such authorization to receive the order has to be given separately by the person for whom the order is meant. As such, we are of the view that the said provision does not cover the present situation. 5. We further note that inasmuch as admittedly the order passed by the Commissioner (Appeals) was received back by them and no further service stands showed to us and in view of the fact of subsequent collection of the order by the appellant from the Consultant, we deem it fit to condone the delay in filing the present appeal. COD application is accordingly allowed and the stay petition is listed for hearing on 10-4-2012. (Order dictated and pronounced in the open Court)
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2012 (2) TMI 469
Clandestine removal - Shortage of stok - case of assessee is that the Revenue completely ignored melting loss of 4% of copper wire scrap and loss of 1% on copper wire scrap covered with insulated material - there was a difference of opinion and the matter went before Larger Bench where it was held that it is apparent that except for the shortage in raw material viz., HD which was disputed by the assessee and the statement of the Director, there was no other evidence on record to indicate clandestine manufacture and removal of final products. On behalf of the revenue, except for placing reliance upon the statement of the Director recorded during the course of the search proceedings, no evidence has been pointed out which corroborates the fact of clandestine manufacture and removal of final products. In the circumstances, on the basis of the material available on record, it is not possible to state that the Tribunal has committed any legal error in giving benefit of doubt to the assessee - there being no concrete evidence (as agreed by both the Members) of clandestine removal of the goods, the appeals are required to be allowed - appeal allowed - decided in favor of assessee.
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2012 (2) TMI 443
Rate of interest - Whether the Tribunal erred in reducing the rate of interest on return of pre-deposit to 6% per annum with effect from 20th October 2005 in terms of Section 35FF of Central Excise Act, 1944 read with Section 11BB of Central Excise Act, 1944 - Held that:- modification of rate of interest under Central Excise Act, 1944 came into force only on 10-5-2008 and hence cannot be made applicable to instant case inasmuch as remand order of Tribunal was passed on 19-7-2005 and was received by Commissioner on 30-8-2005. Hence, rate of interest notified by Central Govt. under Section 11BB ibid @ 6% p/a vide Notification No. 67/2003-C.E. (N.T) applicable - Decided in favour of assessee.
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2012 (2) TMI 441
Duty demand - Scheme for excise duty liability based on installed Annual Capacity - Appellant opted for duty payment - Held that:- if a manufacturer claims abatement for not working during a short period as provided in Section 3A(3) conditions prescribed have to be followed. Such conditions involve giving advance intimation taking meter reading for electricity supply etc. to make sure that the manufacturer does not actually do manufacturing activity during such period. However there are no such conditions prescribed in sub-section (2). Apparently the appellant has tried to take benefit of this loop-hole by just sending intimation that they were surrendering the certificate. The Authorised Representative for Revenue submits that it is this dubious method that the Appellant has adopted to evade excise duty.
As may be seen the adjudicating authority accepted that the factory was closed during Sep. 1997 and Oct. 1997 and also in March, 1998. The First Appellate authority has not accepted that the factory was closed during the period because intimations regarding last reading for electricity supply was not intimated and has confirmed duty liability for the entire period of Sep. 1997 to March, 1998. The Commissioner (Appeals) has accepted the contention of Revenue that the request for surrender of registration was an eye-wash and they were actually producing goods during the entire period.
Appellants did not do manufacturing activity during the period 2-9-1997 to 28-11-1997 and also from 28-2-1998 to 31-3-1998. So I hold that the duty liability determined in the adjudication order to be proper - However penalty not imposable - Decided partly in favour of assessee.
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2012 (2) TMI 440
Waiver of pre-deposit of duty - Wrong availment of CENVAT Credit - Violation of principle of natural justice - Held that:- as the notices for hearing were not served as per the provisions of Section 37C of the Central Excise Act, therefore we find merit in the contention of the applicants that an opportunity of hearing is to be granted by the adjudicating authority. In view of this, the impugned order qua the applicants is set aside, after waiving pre-deposit of duty, interest and penalties and the matter is remanded to the adjudicating authority for de novo adjudication and to decide afresh after affording an opportunity of hearing to the appellants. The appellants are directed to appear before the adjudicating authority on 9-4-2012 at 10 am and thereafter the adjudicating authority will fix the date of hearing and decide in accordance with law - Decided in favour of assessee.
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2012 (2) TMI 439
Reversal of CENVAT Credit - Confirmation of interest and penalty - Held that:- As such the Explanation-II read with Rule 14 which in turn refers to the provisions of Section 11AB, the non-payment of the credit amount would result in confirmation of interest against the assessee. When the law itself provide for confirmation of interest, I find no reasons to accept the appellants’ plea for setting aside the interest confirmation - appellants are liable to pay interest on the late reversal of Modvat Credit - Following decision of Ind-Swift Laboratories Ltd. [2011 (2) TMI 6 - Supreme Court] - confirmation of interest is upheld.
The appellants were admittedly clearing their final exempted products on payment of 10% of the value of the same in terms of provisions of Rule 6(3)(b). Proper returns were being filed by them. The mistake came into notice of the Revenue only as a result of audit. I find that the this is a genuine mistake without any colour of suppression or mis-statement on the part of the appellants. As such I find that the penalty of Rs. 1 lakh imposed upon the appellants is not justifiable, the same is accordingly set aside - Decided partly in favour of assessee.
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2012 (2) TMI 438
CENVAT Credit - Non maintenance of separate accounts - Violation of provisions of Rule 6(3) of Cenvat Credit Rules - Held that:- if the Commissioner finds that the credit reversed by the assessee is not correctly reversed, the only option available to the Commissioner is to calculate it correctly and then ask them to reverse the correct amount. It goes without saying that before adopting the above manner of calculation, he has to give reasons as to why he considers that the calculation given by the assessee is not proper and he has to disclose the method he is going to adopt to the assessee so that the assessee can make submissions as to why the calculation adopted by him may or may not be justified. After the retrospective amendment made by Section 73 of Finance Act, 2010, there is no scope for demanding the assessee to pay 10%/5% of the value of the exempted product. Prima facie, we are convinced that the assessee has complied with the provisions of the amended Rule 6 of Cenvat Credit Rules, 2004.
Retrospectively amended provisions are applicable for the impugned period also. If the calculations submitted by the appellant is not correct, the Commissioner has to calculate the correct amount to be reversed explaining the method he proposes to adopt and giving an opportunity for hearing the appellant. Therefore, we set aside the impugned order and remand the matter to the adjudicating authority to properly decide the quantum of input credit to be reversed by the appellants as per provisions of Rule 6 of Cenvat Credit Rules - Decided in favour of assessee.
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2012 (2) TMI 437
Rate of duty - Debonding of duty - Held that:- appellant, a 100% EOU, had, at the time of debonding, achieved positive NFE and were eligible for migration to EPCG Scheme in terms of the provisions of Condition No. 8 of the Notification No. 22/2003-C.E. issued under Section 5A of Central Excise Act, 1944, and Condition No. 8 of Notification No. 52/2003-Cus. issued under Section 25(1) of Customs Act, 1962. In terms of the provisions of these Notifications, at the time of debonding the duty on the capital goods is payable on the depreciated value and at the rate in force on the date of clearance on debonding - a 100% EOU at the time of debonding can be allowed to migrate to EPCG Scheme provided it has positive NFE. However, while the rate of Customs duty chargeable on the capital goods imported under EPCG scheme has been prescribed under Notification No. 64/2008-Cus. issued under Section 25(1) of Customs Act, 1962 and the same along with the education cess is 3.09%, on Central Excise side, there is no such parallel notification issued under Section 5A of Central Excise Act, 1944, prescribing a similar concessional rate of duty in respect of capital goods supply under EPCG scheme.
Prima facie in absence of such an Excise Exemption Notification, the EPCG rate prescribed under Customs Notification No. 64/2008-Cus. dated 9-5-2008 cannot be treated as concessional rate of Excise duty chargeable on indigenously manufactured goods at the time of their debonding by a 100% EOU migrating to EPCG Scheme, as this is an omission on the part of the Government, which cannot be remedied by the Courts or the Tribunal. In view of this, we are of view that this is not the case for total waiver - Conditional stay granted.
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2012 (2) TMI 436
Demand of duty - Confiscation of cash - Demand on the ground that the inputs which were found short were used in the manufacture of finished goods and cleared without payment of duty - Held that:- shortage arrived at by counting size wise of goods and by taking average weight of one of each category - Further, in the case of shortage of input, in the absence of any evidence on record to show that the same was used in the manufacture of finished goods and cleared without payment of duty, the demand cannot be made on these goods - In the absence of any evidence on record that the amount in question is sale proceeds of clandestinely removed goods, the confiscation is not sustainable - Decided in favour of assessee.
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2012 (2) TMI 435
Remission of duty - Non-observance of the procedure as recorded in the Manual - Held that:- procedure as recorded in the Manual is required to be followed but in the facts and circumstances of the present case involving the product which is perishable in nature and the said fact as to be kept in a particular temperature, I am of the view that the strict non-observance of the above Rule should not be adopted as a reason for denial of the benefit otherwise available to the appellant. Admittedly, there was fire in the appellants factory, intimation about the same was given to the Revenue. Superintendent visited the factory within 4 days, subsequent destruction of the goods was in the presence of surveyor, who also issued certificate of destruction and the same was also intimated vide their letter dated 9-5-2005. In these circumstances, it will not be justifiable to deny the benefit of remission to the appellant on the sole ground of strict observance of the procedure. As such, by extending the benefit to the appellant, I set aside the impugned order of the Commissioner denying the remission - Decided in favour of assessee.
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2012 (2) TMI 434
Denial of exemption under S. No. 32D in Notification No. 6/2002-C.E., dated 1-3-2002 - Process not done at assessee's premises - Held that:- exemption cannot be denied for the reason that blending was not done in a tank of the Appellants. The Appellants control the blending process and take responsibility for the standards of the blended product. Since the products were used for the intended process, we prima facie do not agree that exemption should be denied for the reason that process of blending took place in the tanks of trucks. Also there is no condition in the notification that Appellants should have been holding a license from BIS authorities. Prima facie we do not agree with the argument of Revenue that the Appellants were collecting amounts representing as excise duty from the consumers when the goods were sold at a price inclusive of all costs and levies. The provisions of Section 11D appears to be prima facie not applicable, to the situation. Accepting the interpretation canvassed by Revenue will result in total denial of exemption that is notified by the Revenue which is prima facie not justified. The notification does not prescribe that the blended product should be sold at a lower price - Appellants have made out a prima facie case for waiver of pre-deposit of dues arising from the impugned order for admission of the appeal - Stay granted.
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2012 (2) TMI 433
Confiscation of goods - Goods cleared without payment of duty - Held that:- Commissioner (Appeals) has held the goods not liable for confiscation and there is no challenge by the Department against these findings. We agree with the ld. Advocate that once the goods itself are not liable for confiscation vehicles also would not be liable for confiscation and vehicles owners would also not be liable for any penalty - Decided in favour of assessee.
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2012 (2) TMI 432
Classification of goods - Classification under Heading 9033.00 or Chapter 8544.00 - Held that:- Heading 9033.00 covers parts and accessories of the machines, appliances, instruments or apparatus of Chapter 90. Inasmuch as the optical fibre cables fall under Chapter 90 as held by the Tribunal in the above referred decision, the parts would fall under Chapter 90.33. As such in terms of the law declared by the Tribunal in the above referred decision, we hold the correct classification of the joint-closure/box of optical fibre cables would fall under Heading 9033.00. We accordingly set aside the impugned order - Decided in favour of assessee.
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2012 (2) TMI 431
Duty demand - Shortage in stock - Clandestine removal of manufactured goods - Held that:- before coming to a firm conclusion about the shortage detected during the stock taking the nature of commodity and the method of stock taking done has to be taken into account. We find that the commodity involved in this case is accounted in RG-I register in MTs and the stock verification is done by measuring the length of the pipes and the number of the pipes by segregating the pipes into three broad categories of light, medium and heavy. Thereafter weight per meter for each of the three categories are assumed and total weight of all pipes is arrived at. The basis of the standard linear density adopted is not explained. There is nothing in Panchnama to show that correctness of linear density has been verified by weighing at least sample pipes from the three categories. It is very obvious that the weight per meter depend upon the thickness. Thickness of sheets used is not recorded in Panchnama. In the absence of these critical parameters the ascertained stock as per the Panchnama is not reliable.
Revenue has not been able to adduce any collateral of clandestine removal. Therefore we are of the view that the quantity ascertained in the stock taking is not accurate enough to come to the conclusion that there was manufacture of goods without accounting and clearance of such goods. We also noticed that the internal record dated 29-5-2005 shows goods cleared for despatch as on that date. It is difficult to conclude that the document indicated the physical stock of goods on that day - Decided in favour of assessee.
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