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Central Excise - Case Laws
Showing 121 to 140 of 177 Records
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2012 (6) TMI 280 - CESTAT, KOLKATA
Plea for waiver of pre-deposit of duty - demands being raised for fabricated steel structural which has been contended by revenue as the parts of stoplock gate - assessee contended that recently issue has been decided in favor of assessee - Held that:- It is found that that the Commissioner (Appeals), vide its impugned Orders dated 12.01.10 decided the issue in the Department's favour, whereas in his recent Order dated 04.04.12 he has decided the issue in favour of the Applicant. Therefore, the issue is debatable. Thus, prima facie, the case is in favour of the Applicant. Therefore, the requirement of predeposit is waived and recovery thereof, is stayed during the pendency of the Appeals.
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2012 (6) TMI 279 - CESTAT, NEW DELHI
Clandestine removal of goods - confirmation of demand on the basis of shortages of raw material and the hypothetical calculations of production of final product and clandestine clearances of the same - demand dropped by Commissioner(Appeals) on ground that charges of clandestine removal cannot be established on the basis of presumptions - Held that:- In view of difference in opinion of the members regarding whether the case of clandestine removal made out by Revenue is to be upheld or dropped, matter referred to Larger bench.
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2012 (6) TMI 278 - CESTAT, AHMEDABAD
Application for compounding of offence rejected as there are demonstrable contradictions or inconsistencies or incompleteness Held that:- Before the compounding of offence takes place, the penalty imposed is liable to be paid and the basic principle while filing application for compounding of offence is that the offence is admitted - Just because the appellant took a different ground in reply to show cause notice while making the application, it cannot be said that he has failed to disclose the material facts as at the time of giving statement and at the time of replying to the show cause notice the appellant was working with the Company under the directions of same Company and the common thread as observed that the appellant acted as per the directions of the Managing Director thus it cannot be said that there was deliberate suppression of facts or non-disclosure of material facts.
Rectification of mistake (ROM) before the Tribunal against final order Held that:- If the appellant were to pursue the ROM, it would be for his benefit and the fact of filing of ROM and non-consideration of the same by the Tribunal has affected the appellant adversely and in no way benefitted him - non-pursuing of the ROM application and non-mentioning the fact of filing of application, cannot be said to be non-declaration of material fact or suppression and such non declaration or suppression in no way would benefit the appellant.
Submission that the order passed by the Chief Commissioner was an administrative order and therefore is not appealable Held that:- As decided in DHARAMPAL SATYAPAL LTD. Versus COMMR. OF C. EX., SHILLONG [2008 (3) TMI 86 (Tri)] since the Chief Commissioner will be exercising the power of the Commissioner while adjudicating the matter, there would be normally no dispute about the Appellate Tribunal hearing an appeal against such an Order. Moreover, we note that Section 35B(l)(c) of the Central Excise Act, 1944 provides an appeal to this Tribunal against an Order passed by the Central Board of Excise and Customs, which is a higher authority than the Chief Commissioner.
Rejection of the request for compounding of offense on these grounds cannot be sustained - the impugned order is set-aside and the matter is remanded to the Chief Commissioner to decide the matter afresh.
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2012 (6) TMI 277 - CESTAT, KOLKATA
Plea for waiver of pre-deposit of duty of Rs 2.03 lacs, penalty of Rs 8.31 lacs and penalty of Rs 1 lacs on Director - assessee contended that they have already paid a sum of Rs 7 lacs at the time of visit of the officers of DGCEI and could not deposit 50% amount of penalty directed by the Commissioner(Appeals), who dismissed their appeal for non-compliance with the provisions of section 35F - Held that:- It is found that Commissioner(Appeals) has not decided the issues on merits. Therefore the case is remanded to Commissioner(Appeals) for deciding the issue on its merits without insisting for any further pre-deposit.
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2012 (6) TMI 276 - CESTAT, MUMBAI
Waiver of pre-deposit - whether debiting amount in the Cenvat Credit Account as pre-deposit cannot be accepted as a compliance with the condition of stay order Held that:- in the case of Manak Moti Forgings (2010 (10) TMI 279 (Tri)) pre-deposit of duty amount by way of debit in the Cenvat Account is accepted as sufficient compliance with the provisions of Section 35F of the Central Excise Act, 1944. as the applicant has already paid the duty demand, pre-deposit of interest and penalty is waived and recovery thereof stayed. Commissioner (Appeals) has not decided the appeal on merits. Hence the impugned order is set aside and the matter is remanded to the Commissioner (Appeals). appeal is allowed by way of remand.
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2012 (6) TMI 275 - CESTAT, NEW DELHI
Demand of duty, interest and penalty - default in payment of duty remained continue beyond 30 days - party has paid an amount through PLA and through cenvat credit account as Central Excise duty - contravention to the provisions of Rule 8(3A) Held that:- Actually Rule 8 (3A) says that the goods will be deemed to be cleared without payment of duty and all the consequences under "these Rules" will follow. The reference is only to the C. E. rules and not to the Cenvat Credit Rules, 2004. The deeming fiction will apply only for applying penal consequences under Central Excise Rules 2002. The major consequence is that such goods would have been liable to seizure and confiscation under Rule 25 of C. E. Rules. In fact Rule 8(3A) is drafted to enable this as a means to compel the assesse to pay his declared dues promptly by the due date or at least within thirty days thereafter.
Non-payment of excise duty arises often in administration of excise levy. Show Cause Notices are issued in such cases as per provisions of Section 11A of the Central Excise Act to recover duty short paid. Normally such short-payment can be made good by paying duty through Cenvat credit as authorized by Central Excise Rules, 2002 and Cenvat Credit Rules, 2004. So there should be a reason why such payment cannot be accepted in this case. The reason being quoted is that this is a situation covered by Rule 8(3A) and the Rule prescribes that so long as the assessee is in default for any previous month payment through Cenvat credit is not a proper discharge of duty liability. This prohibition gets lifted the moment the default is made good along with appropriate interest on defaulted amount and normal situation is restored.
Imposition of penalty under Rule 25 - In view of the decision of Gujarat High Court in the case of CCE Vs. Saurashtra Cement Ltd (2010 (9) TMI 422 (HC) ) penalty under Rule 27 is the appropriate penalty and reduce the penalty on the Appellants to Rs.5,000/-.
Appeal is thus partially allowed by setting aside the duty demanded and reducing the penalty to Rs.5,000/-.
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2012 (6) TMI 251 - CESTAT, AHMEDABAD
Dropping of demand raised u/s 11D of Central Excise Act, 1944 - Held that:- Lower authority have rightly dropped demand on the ground that for invoking the provisions of Section 11D, two conditions have to be fulfilled viz. the person should be liable to pay the duty under Central Excise Act and the duty collected in excess by the said person represent the duty of Central Excise as well as on the ground that no documentary evidence, to the effect that the excess amount collected on account of upward revision of price was representing Central Excise, has been brought on record - Decided against the Revenue.
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2012 (6) TMI 250 - CESTAT, NEW DELHI
Clandestine removal of goods - confiscation of goods held on ground that same had not been entered in RG-1 records - assessee justified non entry on ground that goods were in semi-finished condition and had to pass quality control - Held that:- Revenue has nowhere contended that the goods were of recent manufacture, hence appellant's stand that they were manufactured for last 3-4 years stands accepted. If that be so, allegations of clandestine removal without making their entry in RG-1 register cannot sustain. The visual examination by the officers who are not technical experts in MDF boards, cannot be made the basis for arriving at a different finding. It has very clearly come-up on records in the shape of deposition of various persons that the boards in question were still in semi-finished condition and were not ripe for making their entry in RG-1 register. Confiscation of the same is neither justified nor warranted - Decided in favor of assessee.
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2012 (6) TMI 249 - CESTAT, AHMEDABAD
Refusal to approve the proposal for issue of CT-1 certificates in a lot of 25, on the ground that appellant failed to give quantity, description and value of goods, while making application - Held that:- Basically the Commissioner is requiring the appellants to indicate the quantity, description and value in each of the CT-1 certificates before approving the lot of 25 to be issued by the Superintendent. Therefore, it would be in the interest of justice to allow the appellants to apply to Commissioner with necessary details afresh - Matter remanded back.
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2012 (6) TMI 248 - CESTAT, MUMBAI
Reversal of the CENVAT credit - the applicant has availed Cenvat Credit on the goods received in their factory and thereafter they issued debit Notes to the material suppliers - Held that:- AS the demand has been raised on the debit notes issued by the appellant on their supplier without any explanation to it - since now they have produced a table showing explanation it needs re-examination at the end of the adjudicating authority - remand the matter to the original adjudicating authority to examine the issue afresh.
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2012 (6) TMI 247 - CESTAT, NEW DELHI
Validity of Registration granted to the appellant under Rule 9 - succession - Held that:- As present appellant is carrying on the manufacturing activity and he is also paying the excise duty on manufactured goods no reason to cancel the impugned registration - set aside the impugned order and allow the appellants to carry on his manufacturing activity under the registration already granted.
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2012 (6) TMI 246 - CESTAT, MUMBAI
Whether imported custom duty paid goods falling in any of the Schedules to the Central Excise Tariff Act, 1985 would come within the ambit of the expression "excisable good" used in the text of sub-section (1) of Section 11D of the Central Excise Act Held that:- From the Entry 84 of the Union List in the Seventh Schedule and from Sec. 3 of the Central Excise Act, only those goods are subject to central duties of excise which are manufactured or produced in India. imported customs duty paid goods will not come within the ambit of "excisable goods" used in the text of sub-section (1) of Section 11D of the Central Excise Act as those goods are not manufactured or produced in India. imported customs duty paid goods falling under the Schedule of Central Excise Tariff Act, 1985, are excisable goods but duty is payable under sub-section (1) of Section 11D of the Central Excise Act, by the manufacturer or producer or importer. as the appellants are not a manufacturer or producer therefore, as per the provisions of sub-section (1) of Section 11D of Central Excise Act, duty is not payable.
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2012 (6) TMI 222 - CESTAT, AHMEDABAD
Period of Limitation - dispute regarding ineligibility of Cenvat credit availed under Business Auxiliary Services on the invoices raised by one of the Commission agent for sale of input/ raw materials - Held that:- Credit availed on the service tax paid on the sale of inputs by the appellant paid to the appellant's commission agent does not get covered under the Cenvat Credit Rules.
Limitation - In SCN, no where it is alleged that cenvat credit has been availed with intention to evade payment of duty, nor any statement was recorded. In the absence of evidence indicating that the appellant had full knowledge of availing ineligible credit, show cause notice issued on 19.02.2009 is patently time-barred. Impugned order is set-aside only on the limitation ground - Decided in favor of assessee.
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2012 (6) TMI 221 - CESTAT, AHMEDABAD
Cenvat credit - Rent-a-Cab service utilised for the purpose of transportation of employees to the place of work and vice-versa Held that:- As decided in Commissioner of Central Excise, Bangalore-III, Commissionerate v. Stanzen Toyotetsu India (P.) Ltd.[ 2011 (4) TMI 201 (HC)] that any service used by the manufacturer whether directly or indirectly in or in relation to the manufacture of final products constitutes input service and the catering service, rent-a-cab and transportation services and the tax paid on the said services are stated as input services - substantial question of law framed answered in favour of the assessee.
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2012 (6) TMI 220 - CESTAT, AHMEDABAD
Appeal dismissed by Commissioner (Appeals) for non-compliance with the provisions of Section 35F of Central Excise Act, 1944 - non-filing of application for waiver of pre-deposit of amount of penalty - Held that:- Since assessee contended that Stay Petition was not filed inadvertently and he undertakes to file the same if the matter is remanded back, hence assessee is directed to file stay petition. Matter remanded back to first appellate authority.
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2012 (6) TMI 219 - CESTAT, MUMBAI
Deemed export - supply to mega power project - sub contractor - International Competitive Bidding (ICB) - applicants availed the benefit of Notification No.6/2006-CE dated 1.3.2006 and cleared the goods at nil rate of duty - Revenue wants to deny the benefit of Notification No.6/2006-CE on the ground that by invoking the provisions of Exim Policy Held that:- Customs Notification 21/2002 does not provide any condition that the benefit is available subject to the provisions of the Exim Policy. Pre-deposit of duty, interest and penalty is waived for hearing of the appeal. The stay petition is allowed.
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2012 (6) TMI 218 - CESTAT, MUMBAI
Deemed export - supply to mega power project - sub contractor - International Competitive Bidding (ICB) denial of benefit of Notification no. 6/2006-CE dated 01.03.2006 by invoking the provisions of Exim Policy - Held that:- Customs Notification 21/2002 does not provide any condition that the benefit is available subject to the provisions of the Exim Policy. Pre-deposit of duty, interest and penalties is waived for hearing of the appeals. stay petitions allowed.
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2012 (6) TMI 198 - CESTAT, AHMEDABAD
SSI exemption - denial of exemption for Yr 1990-91 on ground that aluminum circles cleared during the period 1989-90 as exempted goods, cannot be treated as exempted goods and consequently the total value of clearances exceeded the limit of Rs 2 Crores - Held that:- It is undisputed that during 1989-90, the appellant had manufactured and cleared the aluminum circles without recording the same and Notification No.180/1988 was applicable in the cases of goods manufactured.
Prior to 25.07.91, the benefit of Notification No.180/1988-CE, cannot be denied to the appellant even if the product manufactured by him was cleared without accounting. If that be so, the aggregate value of such clearances under Notification No.180/1988 cannot be considered for the purpose of aggregate value of clearances made during the F.Y. 1989-90, which would mean that the appellant had not crossed the threshold limit of Rs.2 Crores for denying him the benefit of SSI Notification No.175/86-CE for the year 1990-91 - Decided in favor of assessee
Whether the pat scrap was excisable to Excise duty - Held that:- Since adjudicating authority in his impugned order has not at all discussed how the duty liability on scrap arises if there is no manufacturing of scrap, hence, we remand the matter back to the adjudicating authority on this point to reconsider the issue afresh.
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2012 (6) TMI 197 - CESTAT, AHMEDABAD
Clandestine removal of goods - non-acceptance of retraction of statement of partners - contradiction of the quantity allegedly cleared by the appellant - non co-relation of evidences and substantiation - Held that:- All these inherent commission and omission has to be properly reasoned out by the adjudicating authority in his findings for confirmation of demand against the appellant. In the absence of any such co-relation, we are of the considered view that the issue needs to be reconsidered by the adjudicating authority and hence we set-aside the impugned and remit the matter to the adjudicating authority to reconsider the issue afresh after following the principles of natural justice.
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2012 (6) TMI 196 - CESTAT, AHMEDABAD
Challenging the powers of first appellate authority - the first appellate authority has remanded the matter back to the adjudicating authority - Held that:- The issue involved in this case is regarding refund of amounts claimed by the assessee and the adjudicating authority didn't considered the evidences on record and didn't called for more evidences from the appellant before disposing the refund claim - thus the errors are correctly pointed out by the first appellate authority and the case is remanded back to be decided afresh following the principles of natural justice.
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