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Central Excise - Case Laws
Showing 21 to 40 of 71 Records
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2012 (3) TMI 403
Clandestine manufacture and removal - supply of non-duty paid ingots to MSRMPL - penalty on company - Held that: - the evidences appearing against MSRMPL that they were indulging in clandestine manufacture and clearance of rolled steel products and this case is already decided against MSRMPL. So it follows that they had been obtaining raw materials also without payment of duties. Some of the raw material suppliers had accepted their complicity had paid the duties involved.
Tribunal in the case of WOODMEN INDUSTRIES Versus COMMISSIONER OF CENTRAL EXCISE, PATNA [2003 (9) TMI 228 - CESTAT, KOLKATA], held that penalty under Rule 209A could be imposed on natural persons only and not on a company.
MSRMPL have been proceeded against separately for the offence of manufacture of rolled products from the unaccounted material dealt with in these proceedings. In that case duty has been demanded and penalty imposed. So we do not consider it necessary to impose penalties separately for buying the non-duty paid material and for this reason we propose not to impose separate penalties on MSRMPL.
Appeal allowed - decided partly in favor of Revenue.
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2012 (3) TMI 399
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... ... ..... ugh Section 11AC, the person who is liable to pay duty as determined under sub-section (2) of Section 11A shall be liable to pay a penalty equal to the duty so determined. We also find that Section 11A has been made applicable to the recipient of the goods under Chapter X procedure and under Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001 as Section 11A is separately mentioned in Rule 196 of the Central Excise Rules and in Rule 6 of Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001. We, therefore, uphold the penalty imposed by the adjudicating authority in Order No. 31/2009, dated 27-1-2010 under Sec. 11AC of the Act on the appellants. However, penalty imposed under Rule 173Q and Rule 25 of the Central Excise Rules in Order Nos. 32-56/2009, dated 5-2-2010 is set aside. 17. Appeals are disposed of in the above terms. (Pronounced in Court on 27-3-2012)
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2012 (3) TMI 370
Reduction in penalty imposed - whether penalty to be imposed upon the appellant in terms of provisions of Rule 96ZQ(5) should be equivalent to the duty late deposited by them or the imposition of penalty of Rs. 5,000/- would meet the ends of justice - Held that:- Rule 96ZQ as also Rule 96ZQ(5)(ii) were the subject matter of writs pending before various High Courts challenging the vires of the same. Reference can be made to the Hon’ble Supreme Court decision in the case of Union of India v. Krishna Processors [2009 (5) TMI 11 - SUPREME COURT] wherein the matters were remanded to various High Courts for deciding the question of vires of the provisions of Rule 96ZQ(5)(ii). It is brought to our notice that Hon’ble High Court of Punjab and Haryana vide their judgment in the case of Bansal Alloys and Metals v. Union of India [2010 (11) TMI 83 - PUNJAB & HARYANA HIGH COURT] has held that the provisions of Rules 96ZO, 96ZP and 96ZQ provide minimum penalty without discretion and without considering extent and circumstances for delay are ultra vires the Constitution of India - Decided against Revenue.
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2012 (3) TMI 369
Waiver of pre deposit - appellant who have paid excise duty in respect of the goods supplied to their sister concern M/s. Nalwa Steel Pvt. Ltd. in accordance with Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 - Held that:- during the relevant period the appellant had supplied pig iron, rails, etc., to its sister concern M/s. Nalwa Steel Pvt. Ltd. as also independent buyers for consideration. It is also not in dispute that the appellant raised invoices for the supplies made to the sister concern and charged consideration amount and also paid the excise duty on cost basis in accordance with Section 4 of the Central Excise Act, 1944. Plea of the Department is that since M/s. Nalwa Steel Pvt. Ltd. falls within the definition of related party as defined under Section 4(3)(b)(i), the appellant ought to have assessed the excise duty payable as per Rule 8 of the Valuation Rules - prima facie the excise duty paid by the appellant in respect of goods sold to the sister concern on the basis of sale consideration as per Section 4(3)(b)(i) of the Central Excise Act cannot be faulted. Thus, we conclude that appellant has been able to make out a prima facie case justifying the waiver of pre-deposit of duty demand with interest and penalty - Stay granted.
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2012 (3) TMI 368
Benefit of SSI exemption Notification No. 8/2002-C.E., dated. 1-3-2002 - Confiscation of goods - Imposition of redemption fine - Held that:- goods falling under Heading 74.03 are entitled to the benefit of notification. However, exclusion clause takes away the benefit in respect of brass rods of length not exceeding 10 feet used in the factory of production for making wires. Inasmuch as in the present appeal, the brass rods manufactured by the appellant are admittedly more than 10 feet and are used in the same factory for making wires and benefit of SSI exemption notification is not available to the said brass rods. Further the benefit of captive consumption notification is also not available to them, inasmuch as their manufacture attracts nil rate of duty - Redemption fine reduced - Decided partly in favour of assessee.
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2012 (3) TMI 367
Denial OF cenvat credit - invoices in respect of services received were in the name of head office and head office distributed the credit without being a registered service distributor allowed its units to enjoy the Cenvat credit - Held that:- Identity of the head office and Smelter unit remained unquestioned. So also the service received by the Debari Smelter unit under invoices showing the head office address remained unquestioned. Only because the invoices carry name of the head office, denial of Cenvat credit shall defeat the object of avoiding cascading affect. No doubt, input service distribution scheme was introduced to enable central agencies to distribute credit available to its units under certain procedures. But at the initial stage of implementation of law, difficulties were experienced because of the Registration procedure and certain technical procedures involved. When the identity of service recipient and provider as well as genuinety of transaction is not in doubt there may not be difficulty to allow Cenvat credit - Decided in favour of assessee.
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2012 (3) TMI 366
Excise duty liability on the molasses from which non Denatured Ethyl Alcohol is produced and exported - Held that:- Goods exported cannot be considered to be exempted from whole of duty of excise leviable thereon or chargeable to NIL rate of duty. Goods can be exported without payment of duty in Bond or under claim of rebate that would not and cannot be interpreted to be removal of goods at NIL rate of duty or exempted fully from duty - Since there is an acceptance of the issue in the respondent’s own previous case - Decided against Revenue
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2012 (3) TMI 365
Waiver of condition of pre-deposit - Denial of CENVAT Credit - Partial duty liability cleared by CENVAT Credit - Partial amount cleared by cheque - Dishonour of cheque not informed by department or bank to appellant - Held that:- cheque for payment of balance excise duty for the month of July amounting to Rs. 3,93,607/- issued on 1-9-2009 was dishonoured. Therefore, prima facie, the aforesaid cheque, which was dishonoured for whatsoever reasons, cannot be taken as the payment of excise duty. Admittedly, the arrears of excise duty were paid on 2-2-2010 i.e. after a delay of 180 days from the date on excise duty became due and the interest thereon was deposited much later i.e. on 7-5-2010. Thus, there is a clear default in payment of excise duty for a period more than 30 days. As such, Rule 8(3A) of the Central Excise Rules, 2002 would come into play, which clearly provides that if the assessee defaults in payment of duty beyond thirty days from the due date, as prescribed in Rule 8(3A), the assessee shall, pay excise duty for each consignment at the time of removal, without utilizing the Cenvat credit.
Appellant has availed of Cenvat credit in violation of Rule 8(3A) of Central Excise Rules, therefore, prima facie, the Adjudicating Authority has rightly disallowed the Cenvat credit adjustment against the excise duty payable and raised the demand for the excise duty on subsequent consignments removed without making good the shortfall in excise duty for the month of July, 2009 with interest - No prima facie case for waiver of the condition of pre-deposit of demand - Conditional stay granted.
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2012 (3) TMI 364
Waiver of pre-deposit of duty - facility of removal of petroleum products without payment of duty from refineries to warehouses was withdrawn with effect from September, 2004 - duty in respect of petroleum products which remained in the pipe line namely BPT pipeline and Pirpau pipeline - Held that:- BPT pipeline does not belong to the applicant and Pirpau pipeline is within the factory limit of the applicant, therefore, prima facie, the applicant made out a strong case in their favour. Pre-deposit of dues is waived and recovery thereof is stayed during the pendency of the appeal - Stay granted.
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2012 (3) TMI 363
Valuation - Inclusion of advertisement expenses in assessable value - Held that:- There is nothing unusual about the sole selling agent incurring advertising expenditure to promote his business. Such advertisement expenses cannot form part of the assessable value of the goods manufactured by the respondents. In the facts of the case, the sole selling agent is incurring such expenditure from his profit margin. - This is not a case where manufacturer is asking for any deduction from consideration realized by them for the reason that the expense is incurred for advertising the product. - Decided against Revenue.
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2012 (3) TMI 362
Waiver of pre deposit - Benefit of exemption Notification No. 56/2002-C.E. - Manufacture of pesticides - Held that:- Notification No. 56/2002-C.E. provides exemption to the extent as mentioned in the notification by way of requiring the assessee to first pay the duty through PLA, if any payable, after exhausting the Cenvat credit available at the end of the month and it is the duty paid through PLA which is available as refund subject to the cap of duty on the value addition specified for the product in the notification which for the goods of Chpater 38 is 34%. It is also not the Department’s allegation that the quantum of exemption availed is more than the duty payable on the specified value addition i.e. 34%. Thus even if the department’s allegation that the appellant have inflated the production figures is accepted, the fact remains that the refund they have received in respect of the inflated production is of the duty which they had actually paid. It is also not the case where the goods cleared by the appellant to a downstream manufacturer have been used by him as input and on the basis of the invoices issued by the appellant, the downstream manufacturer has availed full Cenvat credit in respect of the exempted goods under Rule 12 of the Cenvat Credit Rules, 2004. Thus, so far as duty demand of Rs. 1,44,78,352 is concerned, we are of the prima facie view that the appellant have not benefited in any manner.
Just because the inputs for the pesticides/insecticides are sub-standard, the Cenvat credit in respect of the same cannot be denied sofar as the same are duty paid, and have been received in the factory. Moreover, a manufacturer availing exemption under Notification No. 56/2002-C.E. will not gain anything by availing ineligible Cenvat credit and thus increasing the Cenvat credit available to him, as the duty exemption available to him depends upon the duty paid through PLA after exhausting the Cenvat credit at the end of the month and thus higher Cenvat credit means less quantum of exemption. - requirement of pre-deposit of duty demand, Cenvat credit demand, interest and penalty is waived for hearing for the appeal and recovery thereof is stayed till the disposal of the appeal - Stay granted.
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2012 (3) TMI 361
CENVAT Credit - Penalty - Non utilization of credit - Held that:- Penalty proceeding being quasi-criminal in nature the conception, preparation, attempt and commitment should demonstrate contumacious conduct and result in causing prejudice to Revenue. The appellant did not reach to the commitment stage although conception and preparation for taking credit is visible from the credit entry in the statutory record. In absence of attempt and commitment penalty is not exigible - Decided in favour of assessee.
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2012 (3) TMI 360
Valuation of goods - Determination of assessable value of goods - Held that:- Sofar as clearances of goods manufactured on job work basis concerned, during the period of dispute, the assessable value in respect of the such clearances was to be determined by applying the formulae prescribed in the Apex Court’s judgment in the case of Ujagar Prints & Ors (1988 (11) TMI 106 - SUPREME COURT OF INDIA) read with the clarificatory judgment in the same case reported in [1989 (1) TMI 124 - SUPREME COURT OF INDIA] and accordingly, on this basis, the assessable value has to be the cost of raw materials in the hands of job worker plus job charges plus job worker’s profit. The amount and designing charges would be part of the job charges. However, there is no scope for adding losses suffered by company or notional interest on interest free loans to this cost. In view of this, sofar differential duty in respect of the clearances of goods manufactured on job work basis is concerned, the assessable value has to be determined strictly in terms of the Apex Court judgment in Ujagar Paints (supra). However, if the Department doubts the assessable value of the job- work goods, the same can be got verified by appointing a Cost Accountant under Section 14A.
As regards clearance to other group company alleged to be the related persons, for their captive consumption are concerned, there is no dispute that in respect of these clearances, the assessable value would be 115%/110% of the cost of production in terms of the provisions of Rule 8 of Valuation Rules, 2000 - However, the appellant’s plea, as mentioned in the grounds of appeal, is that they have not provided any C&F Agent service and in fact, they have received the service of C&F agent from some persons and the amount on which the Service Tax is sought to be charged is the amount paid by them to their C&F Agent. The Commissioner must examine this plea and ascertain the factual position. If the appellant are recipient of the C&F Agent services, the Service Tax cannot be charged from them as it is the service providers, who would be liable to pay Service Tax - Matter remanded back - Decided in favour of assessee.
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2012 (3) TMI 359
Waiver of pre deposit - Reversal of CENVAT Credit - Held that:- There is no requirement of issuance of show cause notice for confirmation of interest and the same, being appendix to the principal, is required to be automatically paid by the assessee - Following decsion of Emco Ltd. Versus Commissioner of Central Excise, Mumbai [2011 (6) TMI 567 - CESTAT, MUMBAI] - Stay granted.
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2012 (3) TMI 358
Denial of CENVAT Credit - No Bill of entry filed - Held that:- jurisdictional Assistant Commissioner can allow CENVAT Credit, if he is satisfied that the duty has been paid and goods have been actually used. as a matter of fact, all these details are available except the name and the address of the factory on the bill of entry. The only omission was that instead of endorsing the bill of entry itself in name of the assessee, the importer has issued separate certificate/declaration - Therefore, same has to be considered as part of the bill of entry and both of them cannot be segregated and seen in isolation as done by the Department - Following decision of CCE. & C., VADODARA-II Versus EUPEC-WELSPUN PIPE COATINGS INDIA LTD. [2009 (12) TMI 561 - GUJARAT HIGH COURT] - Decided in favour of assessee.
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2012 (3) TMI 357
Waiver of pre deposit - Denial of credit - Held that:- Commissioner (Appeals) has rejected the appeal on altogether different grounds i.e. one adopted by the Asstt. Commissioner. In any case, we find that the original adjudicating authority has rejected the transfer of the credit on the sole ground that there were no inputs lying in stock and only credit was available. Going through the provisions of Rule 10 of Cenvat Credit Rules as reproduced above, we find that the presence of inputs in the factory at the time of transfer of credit is not the criteria for transfer of such credit. Rule is to the effect that whatever inputs are lying in the factory at the time of transfer of credit, the same ALSO must be transferred along with credit. If no inputs are lying, the same cannot be transferred and cannot be adopted as a reason for denial of transferred credit. As regards the reasoning adopted by the Commissioner (Appeals), we find that though the appellants factory was closed and was not producing, but were filing return showing the availability of the credit - applicant has a good prima facie, case in its favour - Decided in favour of assessee.
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2012 (3) TMI 356
Reversal of CENVAT Credit - Whether the appellant company is correct in reversing the cenvat credit availed on the common inputs which are used in the exempted goods and whether are to pay 8% or 10% of the value of the exempted goods which are cleared from the factory premises - Held that:- appellant had availed the cenvat credit on common inputs and used them for manufacturing the excisable goods as well as exempted goods and that the appellant had been reversing the cenvat credit attributable to the inputs which are consumed in the exempted products. If the reversal of cenvat credit is not being disputed, we find that the issue is now squarely covered by the retrospective amendment carried out by the Finance Act, 2010 - Following decision of Unimed Technologies Ltd. (2012 (11) TMI 820 - CESTAT, AHMEDABAD) - Decided in favour of assessee.
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2012 (3) TMI 355
Intrepretation area based exemption Notification No. 50/2003-C.E., dated 10-6-2003 - Exemption of NCCD - Held that:- Cenvat credit of basic Excise duty was available for utilization for payment of NCCD. The Tribunal’s decision in the case of Prag Bosimi Synthetics Ltd. reported in [2007 (5) TMI 434 - CESTAT, KOLKATA] deals with an identical issue. It stands held that the provisions of Rule 3 of Cenvat Credit Rules do not impose any restriction for utilization of Cenvat credit of basic Excise duty for payment of NCCD. We find that the appellants are entitled to stay on the said ground. Ld. DR’s reliance on the Hon’ble High Court of Gauhati in the case of Dharampal Satyapal Ltd. reported in [2011 (8) TMI 99 - GAUHATI HIGH COURT] is not appropriate inasmuch as in that case, it stands held that the Cenvat credit of Education Cess can be utilized only for the payment of Education Cess. The point required to be decided in the present appeal relates to the utilization of Cenvat credit of basic Excise duty for payment of NCCD. On the above point, we are of the view that the appellants are entitled for unconditional stay on pre-deposit - Stay granted.
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2012 (3) TMI 354
Reversal of CENVAT Credit - Whether the appellant company is correct in reversing the cenvat credit availed on the common inputs which are used in the exempted goods and no further action is required of directing them to pay 8% or 10% of the value of the exempted goods which are cleared from the factory premises - Held that:- Appellant had availed the cenvat credit on common inputs and have used them for manufacturing the dutiable goods as well as exempted goods and that the appellant had been reversing the cenvat credit attributable to the inputs which are consumed in the exempted products. The reversal of cenvat credit is not being disputed, accordingly, the issue is now squarely covered by the retrospective amendment carried out by the Finance Act, 2010. As correctly pleaded by the Ld. Counsel, the judgment of the Tribunal in the case of Unimed Technologies Ltd. (2012 (11) TMI 820 - CESTAT, AHMEDABAD) would squarely cover the issue in favour of the assessee - Decided in favour of assessee.
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2012 (3) TMI 353
Waiver of the pre-deposit - Appeal dismissed for non compliance of pre deposit order - Held that:- appellant requested for more time for payment of pre-deposit of 20% of duty. Appellants should have applied to Hon’ble CESTAT before expiry of deadline. This period expired on 09.08.10. Since more than six months have lapsed even after the deadline fixed by Hon’ble CESTAT, the matter cannot be kept pending by this office indefinitely. Under such facts and circumstances, this office has no option but to reject the appeal once again for the failure of the appellant to comply with order of Hon’ble CESTAT in time - Decided against assessee.
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