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Central Excise - Case Laws
Showing 41 to 60 of 71 Records
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2012 (3) TMI 352
Benefit of Notification No. 108/95-C.E. - project was financed by World Bank only with effect from 1-3-2000 - whether the said exemption could be extended to goods cleared prior to that date - Held that:- It stands explained by the Appellants that initially the goods were imported without payment of duty availing the exemption for goods imported for supply to a project financed by World Bank and when the issue that they might not be eligible for such exemption for the period prior to 1-3-2000 was pointed out to them they paid the duty subsequently. In the facts of the case duty paid on raw materials should have been taken into account while the duty liability - exemption under Notification No. 108/95-C.E. cannot be denied for the reason that part of the project was met by the beneficiary of the loan from the World Bank. The fact that the expenditure up to a particular time frame was met by the beneficiary of the loan is not substantially different from the said position - Decided in favour of assessee.
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2012 (3) TMI 351
Waiver of pre deposit - Valuation of the ambulances - Classification - Duty under Heading 87.02 of the Central Excise Tariff or under Heading 87.03 - Held that:- in the matter of valuation the principle involved is decided against the applicants by the Tribunal, though the matter is under challenge before the Apex Court. So there is a case for calling for pre-deposit on this issue. In the matter of classification, we are prima facie in agreement with the applicants that the Tariff Item in Heading 87.03 can be read only as a split of the goods covered by the goods covered by the description in the heading and the Tariff Item cannot expand the scope of the heading. So we are of the view that there is no case for asking for any pre-deposit of duty demand arising from this issue - Conditional stay granted.
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2012 (3) TMI 350
Duty demand - Whether 25 kgs. packages of insecticides and pesticides cleared by the appellant to a registered dealer can be considered to be retail packings meant for an ultimate consumer, so as to print the same with MRP or not - Held that:- MRP is printed on such retails packages and the same are cleared by them on payment of duty on MRP affixed on the said packages - it has to be, at this prima facie stage, arrived at that such factual contention is correct and does not stand rebutted by the adjudicating authority. If that be so, we are of the view that 25 kgs. packages sent to the dealer are not retail packages as the Revenue has not come up with any evidence to show that these 25 kgs. packages also go to the market in retail sale and are meant for consumption by the ultimate consumer. On the said ground, we find that the appellant has a good prima facie case in its favour so as to allow stay unconditionally - Stay granted.
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2012 (3) TMI 349
Duty demand - Valuation of goods - Inclusion of 50% sales tax collected - benefit conferred under Haryana General Sales Tax Act, 1973 - Held that:- sales tax was being collected by the appellant from their buyers of the goods. The invoices issued by them indicated the entire amount of sales tax. However, as consequence of benefit conferred under Haryana General Sales Tax Act, 1973, the appellants were not required to deposit 50% of the amount of sales tax so collected - Following decision of Maruti Udyog Ltd. v. CCE, Delhi-III [2004 (1) TMI 158 - CESTAT, NEW DELHI] - Decided in favour of assessee.
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2012 (3) TMI 348
Duty demand - Denial of benefit of Notification No. 4/2006 - computation of clearance of 3500 MT - Commissioner held that appellant had cleared the exempted paper, on payment of duty, to encash the duty paid from Cenvat credit from the buyers - Held that:- observation of the Commissioner (Appeals) is without any basis or is contrary to the findings of the Deputy Commissioner arrived in his impugned order. It stands specifically held by the Deputy Commissioner that 150.150 MT of paper on which the duty has been paid is manufactured from the pulp which contains less than 75% by one of pulp made from the specific material, which attracts duty. The above finding is based on the examination and verification of the statutory as records maintained by the appellants. As against the above, there is only an observation by Commissioner (appeals) without any reference to the evidence contrary to the findings of the Deputy Commissioner - Following decision in the case of Ballarpur Industries Ltd. v. C.C.E., New Delhi [2002 (7) TMI 653 - CEGAT, NEW DELHI] - Stay granted.
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2012 (3) TMI 327
Interest u/s 11AA - Appellants have not raised the issue of provisional assessment before the lower authorities - Held that: interest liability under rule 7(4) of the 2001 Rules would arise only if the provisional assessments were made after 1/7/2001 and in the present case, the provisional assessment, if any, being prior to 1/7/2001, the interest liability would not apply - Decided in favor of the assessee
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2012 (3) TMI 326
Classification - poultry keeping equipment - poultry cages, welded wire mesh for poultry industry etc. - parts of Rearing and Laying Units or Batteries viz top, bottom and partition made from G.I. wire - held that:- there can be no doubt that the Wire mesh manufactured by the petitioner even if sold to a poultry farmer for assembling of cages for poultry or battery of such cages cannot qualify as machinery under heading 84.36 and would be an article of iron and steel wire within the meaning of heading 7314.
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2012 (3) TMI 308
Classification of the fermented milk product and non-fermented milk based beverage under the Central Excise Tariff Act,1985 - Claming exemption under Notification No. 01/2011-CE dated 01/03/2011 - applicant is engaged in trading of dairy products set up a manufacturing unit in which they propose to manufacture a fermented milk product and non-fermented milk based beverage - The applicant has expressed the view that the product “Yum Creamy” will be classifiable under heading 04039090 of CETA and the product “Yum Chusky” would get classified under heading 22029030 of the CETA and will also be eligible for the exemption under notification No. 1/2011 – CE dated 01/03/2011 as it satisfies the description “flavoured milk of animal origin” mentioned in the said notification - Held that:- The products “Yum Creamy” and “Yum Chusky” shall be classifiable under headings 04039090 and 22029030 respectively of the Central Excise Tariff Act, 1985; - The product “Yum Chusky” will be eligible for exemption under the Notification No. 01/2011 – CE dated 01/03/2011, subject to the applicant fulfilling the conditions prescribed in the said Notification.
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2012 (3) TMI 307
Condonation of delay - Time limitation - The submission of the Petitioner is that notwithstanding the fact that the Legislature under the proviso to Subsection (1) of Section 35 has laid down an outer limit of a further period of thirty days, beyond the original period of sixty days, for condonation of delay, this does not oust the power of the Court under Section 5 of the Limitation Act, 1963 - Counsel appearing on behalf of the Petitioner submits that unlike Section 35H which provided an absolute period of limitation of 180 days, Section 35 to which the present Petition relates, does provide a power to condone a delay beyond sixty days though upto an extent of thirty days - Once the legislature has laid down a period within which an appeal has to be filed and has prescribed the extent to which a delay beyond that period can be condoned, recourse to the provisions of Section 5 of the Limitation Act, 1963 would stand “ expressly excluded” within the meaning of Section 29(2) of the Limitation Act, 1963 - Decided against the assessee
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2012 (3) TMI 251
Petition filed for directing respondent to refrain from initiating denovo proceedings, pursuant to the final order dated 6.4.2011, pending disposal of the application for rectification of mistake, filed by the petitioner, before the CESTAT – Held that:- Court is not inclined to interfere with the final order dated 6.04.2011 passed by the CESTAT. It is for the tribunal to consider the rectification application filed by the petitioner, and pass appropriate orders - Petition dismissed.
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2012 (3) TMI 250
Direction given to the Commissioner to verify the correctness of the invoices on the basis of which the cenvat amounting to Rs. 1.11 crores have been taken by the appellant - verification report placed on record stating that all the documents have been checked and verified except original invoices involving cenvat credit of Rs. 92445/- could not be produced by the appellant - appellant pleaded that in respect of these documents the original duty paying documents are now available and can be provided - the verification report also mentioned that cenvat credit of Rs. 2050607/- has been availed on the basis of Advise of Transfer for Debit (ATDs) issued by Central Telecom Store Depot (CTSD) which procures the material and passes on the cenvat credit to various units along with the material supplied - Held that :- the impugned order is set aside and the matter is remanded to the Commissioner giving opportunity of personal hearing to the Appellant in course of which they can produce the documents in support of their claim for balance amount of cenvat credit.
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2012 (3) TMI 249
Notification No. 49/2003-CE was mentioned instead of Notification No. 50/2003-CE - a declaration in terms of Notification No. 49/2003-CE dated 10.06.2003 was filed by the appellant - the exemption under the notification shall exercise his option in writing before effecting the first clearance and since a declaration to Notification 50/2003-CE was not made its exemption cannot be claimed - Appellant contented that Notification No. 49/2003-CE was filed by mistake instead of 50/2003-CE - Held that :- It is well settled law that the substantive benefit if otherwise available should not be disallowed on the basis of minor procedural irregularities - the fact that Notification No. 49/2003-CE was mentioned instead of Notification No. 50/2003-CE, cannot be considered to be a mistake fatal to the appellant s claim of benefit. Hence exemption is allowed to be claimed under Notification No. 50/2003-CE.
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2012 (3) TMI 248
Denial of refund of duty paid under protest on ground of unjust enrichment – assessee engaged in producing compounded asafoetida - not amounting to manufacturing process - revenue contended that assessee had raised the sale price and thus burden of duty has passed on to the customers - Held that:- Commercial invoices clearly indicate that the customers were made known that the central excise duty is borne by the assessee and the same is not passed on to the customers. Also, assessee claimed that upward revision in sale price is on account of increase in the price of the raw materials.See Commissioner of Customs, New Delhi V/s. Organan (India) Ltd (2008 - TMI - 31607 - SUPREME COURT). Therefore, on basis of verification of evidences, order of Tribunal granting refund is upheld – Decided in favor of assessee.
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2012 (3) TMI 247
Wrong availment of Modvat Credit on capital goods - conducted physical stock verification at the premises of the three units it was noticed that the shortages of Yo Frooti was on account of clearances to their own unit in the same premises i.e. from Yo Frooti Unit to Agro Unit and there was surplus of modvat inputs in the premises of other unit(s) - overall there was no shortage or excess - Yo Frooti unit had procured capital goods for the manufacture of finished goods and declared that the actual use was for packing of Yo Frooti which was exempt from duty but revenue contented that there was no manufacture of mineral water in the Yo Frooti unit at that time and wrongly availed the duty credit of Rs.23,91,513/- on capital goods.
Held that :- the goods (both the finished goods as well as raw materials) were found in the same premises, it cannot be held that there was an intention to evade duty or to avail ineligible Cenvat credit on inputs, which were found short in premises of one unit but available in the premises of other unit so it will be considered an offence of a technical nature rather than any removal without payment of duty.
From the records of the case it is seen that at the time of receipt of the capital goods, the product Yo Frooti was completely exempt from duty and Yo Frooti became dutiable only after a gap of few months and the eligibility for Cenvat credit has to be determined at the time the goods are received from the manufacturer and if the goods become dutiable subsequently and the manufacturer of goods puts the capital goods to other use, the same will not revive the question of admissibility of modvat credit on capital goods - direct the appellant to make a pre-deposit of Rs.11,50,000/- within a period of eight weeks and report compliance on 10/04/2012
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2012 (3) TMI 183
Limitation - first appellate authority, while remanding the matter back, has not recorded any finding on the point of limitation claimed by the appellant before him – Held that:- First appellate authority has not considered the appeal in its entirety and in a proper perspective and also not recorded any finding on the point of limitation claimed by the appellant. Hence, matter is remitted back to first appellate authority to decide the issue afresh, after following the principles of natural justice – Appeal allowed by way of remand.
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2012 (3) TMI 182
Reversal of CENVAT Credit attributable to the inputs used in the exempted goods and/or payment of 8% or 10% of the value of the exempted goods - period involved 01.03.2004 to 31.01.2009 – Held that:- Retrospective amendment brought in by the Budget 2008 renders that reversal of CENVAT Credit attributable to the inputs utilized in exempted product is enough and assessee need not to reverse 8% or 10% of the value of the exempted goods. Further, amendment also brought to the provisions of Rule 6 of CENVAT Credit Rules, 2004. In present case, assessee had reversed an amount of Rs.20,14,456/- and interest of Rs.16,10,915/-. Whereas CENVAT attributable to the inputs used in exempted goods comes to Rs.11,81,141/-. We find that adjudicating authority has not considered all these aspects in proper perspective thus, issue needs to be re-considered by the adjudicating authority – Appeal allowed by way of remand.
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2012 (3) TMI 169
Deemed Modvat credit on the inputs in terms of Notification No.58/97-CE, dtd. 30.08.97 - credit was availed by the appellants on the strength of invoices issued by supplier of inputs discharging their duty liability in terms of Section 3A of the Central Excise Act, 1944 read with Rule 96ZP(3) Central Excise Rule, 1944 (scheme commonly known as Compounded Levy Scheme) - credit was denied on the grounds that invoices did not declare that the appropriate duty of excise has been paid on the inputs under the provisions of Section 3A of the Act - Held that :- inputs suppliers are working under the Compounded Levy Scheme who discharge their duty liability at the end of the month in which the goods stand cleared by the input supplier and duty liability in respect of each and every clearance was not being determined and reflected in the invoices - appeal allowed with consequential relief to the appellants to take input credit
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2012 (3) TMI 159
Pre-deposit of Duty along with penalty u/s 11AC - manufacture of Chewing Tobacco (Khaini) under the brand name of Raja falling under Chapter 24 of the First Schedule to the Central Excise Tariff Act, 1985 - Revenue contented that one of the raw materials i.e. lime used is first dissolved in the water and after filtration of dissolved limestone, the filtered lime water is further put to use for making khaini by dissolving other raw materials in this end - 50% of the production so recorded on the ground that addition of water results in 50% of excess production and duty stands confirmed against them on the findings of excess production and clearance - Held that;- appreciating the order of the Settlement Commission laying down that such water addition to lime and the other material results in 10% excess production of final product - the appellant to deposit Rs. 3.50 crores within a period of 12 weeks from the date of order passed.
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2012 (3) TMI 158
Dispute of quantification - SSI Exemption - Held that:- Excise duty actually paid at the time of clearance of goods from the factory, in terms of Notification No.175/86 is not required to be included in the total demand, in as much as that already stands paid by the appellants. Once they cross the nil rate of duty slabs and start paying concessional rate of duty under the second slab, the entire clearances thereafter have to be treated as having been cleared on payment of concessional rate. Similarly after crossing the final slab requiring the appellants to pay full rate of duty, the clearances affected thereafter are required to be considered as having been made on full rate of duty. - set aside the impugned order and remand the matter to Commissioner for correctly quantifying the demand of duty.
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2012 (3) TMI 147
Modvat credit on the glasses of bottles included in the assessable value of aerated water during the material period - Revenue submits that as per clause (iii) of the explanation to Rule 57 A of the Central Excise Rules, the cost of packing material which is not included or had not been included in the preceding financial years in the assesseable value of the final product under Section 4 of the Central Excise Act, does not qualify as `inputs' for the purpose of the Modvat credit - Held that :- the assessee had added price of the empty glass bottles and crown corks in the assessable value of the final product as shown in the cost certificate issued by the Chartered Accountant and as such, they are entitled to avail the Modvat credit - the appeal, is dismissed as it does not raise any substantial question of law as the appeal against the order of the CESTAT cannot be entertained if it involves a question of fact
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