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Central Excise - Case Laws
Showing 141 to 160 of 177 Records
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2012 (6) TMI 195 - CESTAT, KOLKATA
Waiver of pre deposit of penalty as applicant has deposited the total duty involved - appeal filed by the appellant dismissed - Held that:- As the delay involved is only 28 days which is within the condonable period of 30 days, therefore, the delay is condoned - Commissioner (Appeals) has not decided the case on merit the case is remanded back without insisting any pre deposit - in favour of assessee by way of remand.
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2012 (6) TMI 194 - CESTAT, KOLKATA
SSI exemption - denied - recovery of duty by classifying the products under Heading 84.38 not under 84.33 - Tea Sorting Machine, Tea Extractor Machine and parts thereof - lower adjudicating authority dropped the demands upheld by Commissioner (Appeals) - Held that:- On perusal of SCN no such evidence is shown which was not available to the Assistant Commissioner to determine the classification otherwise and it also did not allege that material facts were suppressed by the respondents - The case records reflect that the department was made aware of classification and it was open to the department to change the classification if the product was held to be classifiable under a different heading/sub-heading - review order also held that there is no estoppel in the matter of taxation - classification accepted by the Assistant Commissioner cannot be challenged who is the proper officer under Central Excise Law to finalize classification - against revenue.
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2012 (6) TMI 193 - MADRAS HIGH COURT
Writ petition – Cenvat credit - Deputy Commissioner of Central Excise ordered recovery of credit claimed by the petitioner suo motu in their Cenvat Credit account under Rule 12 of the Cenvat Credit Rules 2001 - imposed as fine under Rule 13 of the Cenvat Credit Rules 2001 against which an appeal was filed to the first respondent, the Commissioner of Central Excise (Appeals) along with a stay application claiming waiver of duty and penalty – Held that:- suo motu taking credit by the petitioner is not justified and beyond the scope of Cenvat scheme. issue deserves to be considered in the main appeal filed by the petitioner before the first respondent. Further, the learned counsel for the petitioner states that the company is now revived. since a substantial amount has already been debited and also taking note of the interim order and the pendency of this case for a long period of time, it will be appropriate to direct the disposal of the appeal on merits.
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2012 (6) TMI 174 - CESTAT, AHMEDABAD
Plea for waiver of pre-deposit - Bank Guarantee worth Rs 2.71 lacs executed against the duty liability of approximately Rs 10.84 lacs - Held that:- Said amount is enough deposit to hear and dispose the appeal. Accordingly, application for waiver of the pre-deposit of the balance amounts involved is allowed and recovery thereof stayed till the disposal of appeal.
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2012 (6) TMI 173 - CESTAT, AHMEDABAD
Whether clearances of aviation turbine fuel made during the period utilized in the flights which were on the international route can be considered as exported goods - Held that:- ATF loaded in international flights, may qualify as exports. Since the documents need to be gone into by the lower authorities to appreciate that clearances made during this period was in fact loaded into the flights which were operating on international route, we deem it fit and let the adjudicating authority to do the exercise. Matter remitted back to the adjudicating authority to reconsider the issue afresh.
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2012 (6) TMI 172 - CESTAT, AHMEDABAD
Cenvat credit of the service tax paid on Rent-a-Cab service - Cabs utilised for the purpose of transportation of employees from various places to the place of work and vice-versa - Held that:- In case of CCE v. Stanzen Toyotetsu India (P.) Ltd.(2011 (4) TMI 201 (HC)), it has been held that any service used by the manufacturer whether directly or indirectly in or in relation to the manufacture of final products constitutes input service. The catering service, rent-a-cab and transportation services and the tax paid on the said services are stated as input services. Therefore, issue decided in favour of the assessee.
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2012 (6) TMI 171 - CESTAT, AHMEDABAD
Demand imposed on ground that assessee has not reversed proportionate cenvat credit attributable to exempted goods cleared whereas assessee contended reversal of proportionate cenvat credit with interest attributable to the exempted goods cleared - period involved 2006-07 to 2007-08 - Held that:- If the assessee has paid amount of cenvat credit proportionate to the inputs attributable to the exempted goods cleared from the factory premises, that is sufficient for the purpose of the provisions of Rule 6 of Cenvat Credit Rules, 2004. In view of the retrospective amendments in the provisions of Rule 6, amount already reversed by the appellant as proportionate inputcenvat credit attributable to the exempted goods cleared from the factory premises, should be enough compliance of the law. Order set aside - Decided in favor of assessee
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2012 (6) TMI 169 - CESTAT, MUMBAI
Refund – Cenvat credit – refund claims were sanctioned by Additional Commissioner of Central Excise - Revenue challenged the orders-in-original passed by the Additional Commissioner
Power of Additional Commissioner - section 12E of the Central Excise Act, 1944 provides that a Central Excise officer may exercise the powers and discharge the duties conferred or imposed under this Act or any other Central Excise officer who is subordinate to him, but there should be justification for that – Held that:- Additional Commissioner not mentioned anywhere in the order that those orders are being passed by him in exercise of powers under section 12E of the Central Excise Act, 1944. Since under the statute powers of granting refund are with the Assistant Commissioner/Deputy Commissioner of Central Excise, passing of these order in original by the Additional Commissioner has rightly been held as unsustainable. Matter remanded back to the Assistant Commissioner/Deputy Commissioner for deciding the refund claims on merit under the provisions of Rule 5 of the CENVAT Credit Rules read with notification no. 5/2006-CE(NT) dated 14.03.2006 after giving opportunity of hearing to the appellant. The appeals are disposed of by way of remand.
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2012 (6) TMI 168 - CESTAT, MUMBAI
Transaction value - inclusion of amount towards deferment of sales tax scheme – appellant opted an option to prematurely pay in place of the deferred tax amount, an amount equal to the net present value (NPV) of the deferred tax - department was of the view that the difference between the sales tax collected from the customers and the sales tax paid to the state authorities at NPV should be treated as an additional consideration received from the buyers of the goods and, therefore, they should form part of the transaction value – Held that:- Board vide Circular No.671/62/2002-CX dated 09/10/2002, inter alia, clarified that since the set-off scheme of sales tax does not change the rate of sales tax payable/chargeable on the finished goods, the set-off is not to be taken into account for calculating the amount of sales tax permissible as abatement for arriving at the assessable value u/s. 4. deduction towards sales tax is permissible based on the amount billed or charged from the customers in accordance with the law irrespective of the fact whether the amount is retained by the assessee or incentives are given by the State Government to the assessee in respect of the sales tax so collected. in the case of Paper Products Ltd., (1999 (8) TMI 70 (SC) ) circulars issued by the CBEC are binding on the department and the department is precluded from challenging the correctness of the circulars even on the basis that the same is inconsistent with the statutory provision
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2012 (6) TMI 148 - CESTAT, AHMEDABAD
Clandestine removal - absence of corroborating evidence - Held that:- First appellate authority while setting aside the demands held that there was no corroborative evidences regarding the clandestine removal of the goods. Even today also, the Revenue is not in a position to putforth corroborative evidence as regards the clandestine removal of the goods, hence, we do not find any infirmity in the said findings - Appeal of Revenue stands rejected.
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2012 (6) TMI 147 - CESTAT, AHMEDABAD
Reversal of CENVAT Credit on the goods cleared after availing the benefit of Notification No.30/2004-CE - refusal to give the copy of the report of Assistant Commissioner - Held that:- As the adjudicating authority relied on the report of the Assistant Commissioner that the appellant has not reversed the correct CENVAT attributable to the inputs utilized in goods wherein the benefit of Notification No.30/2004-CE has been availed it has not followed the principle of natural justice to do not give a copy of the report of jurisdictional Assistant Commissioner to the appellant on repeated request so that they can defend the case before him - remand the matter back to adjudicating authority directing to give a copy of report to all these appellants and decide the issue after getting representation/defence against said report from the assessee.
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2012 (6) TMI 146 - CESTAT, NEW DELHI
Penalty under Rule 25 of Central Excise Rules, 2002 - delay in payment of excise duty - CCE & C vs. Saurashtra Cement Ltd [2010 (9) TMI 422 (HC)]- Held that:- To resolve the controversy and to enable the appellant to have an opportunity to satisfy the adjudicating authority as to whether stringent financial condition was there the matter is remanded back to him for fair hearing and to pass a reasoned and speaking order.
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2012 (6) TMI 145 - CESTAT, MUMBAI
Application for waiver of pre-deposit of duty,interest and penalty - demand is confirmed on the ground that the applicants are suppressing the value and quantity of the goods manufactured to evade payment of duty – Held that:- Merit in the contention of the applicant that the directions given by the Tribunal in the remand order directing that the documents asked for by the appellant shall be made available and the appellant shall file complete and proper reply to the various allegations were not complied with as the adjudicating authority on 23.3.2010 supplied copies of the documents except the document at serial No. 23 of Annexure E to the Show Cause Notice - as during the pendency of the present appeals the appellant has received all the documents the matter requires reconsideration by the adjudicating authority afresh - impugned order is set aside after waiving pre-deposit of the dues - in favour of assessee.
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2012 (6) TMI 144 - CESTAT, AHMEDABAD
Confiscation of the goods and imposition of penalty – Held that:- Since Final Order of the Tribunal declares that said demand of the duty on 28,057 kgs of Aluminum Sections now stand set aside and as when there is no demand, the question of penalty under Rule 26 does not arise - the said rule demands imposition of penalty only when there is knowledge of the liability of confiscation of goods and the question of confiscation of goods arises only when there is liability and evasion of Central Excise duty on clearances of such goods which is not present in this case – in favour of assessee.
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2012 (6) TMI 126 - CESTAT, KOLKATA
Condonation of delay - dismissal of appeal filed on 05.02.09 on ground of it being time barred by Commissioner (Appeals) without giving opportunity of being heard to appellant - assessee contended that delay was caused due to time-limit prescribed for filing the appeal being given as 'within three months from date of communication of order' in the impugned order dated 14.11.2008 - assessee also contended late receipt of order on 11.12.2008 - Held that:- Since Commissioner (Appeals) has not granted any opportunity of hearing to the Applicant, before dismissing the appeal, it is perplexing how the Applicant could show that they had received the OIO on 11.12.2008.. The case is, therefore, remanded to the Commissioner (Appeals) to examine all the aspects and decide.
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2012 (6) TMI 125 - CESTAT, KOLKATA
Condonation of delay - dismissal of appeal on ground of it being non-maintainable by Commissioner (Appeals) - assessee contended that delay was caused due to time-limit prescribed for filing the appeal being given as 'within 90 days from receipt of order' in the impugned order - assessee filed the appeal on the 79th day - Held that:- The impugned OIO was issued on 16.10.2007 and the appeal was filed on 07.02.2008 and if the time-period is reckoned from the date of dispatch, i.e.16.10.2007, there was a delay of 19 days in filing the appeal in terms of time-limit prescribed u/s 35. We find that the delay of thirty days beyond sixty days is condonable as per Section 35. Therefore, there was no delay in filing the appeal. In this situation, we remand the matter to the Commissioner (Appeals) to decide all aspects afresh.
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2012 (6) TMI 124 - CESTAT, KOLKATA
Condonation of delay - dismissal of appeal dated 01.06.09 on ground of it being non-maintainable by Commissioner (Appeals) - assessee contended that order dated 23.02.09 was received on 17.04.2009, hence there was no delay in filing the appeal - Held that:- It is found from the Range Superintendent's letter that the impugned OIO dated 23.02.09 was handed over to the authorized signatory of the Applicant on 17.04.2009, and the acknowledgement to that effect was also obtained. If the time-period is reckoned from the date of acknowledgement, i.e. 17.04.2009, the appeal was filed within the time-limit prescribed u/s 35 of the Act. Therefore, there was no delay in filing the appeal. In this situation, we remand the matter to the Commissioner (Appeals) to decide the appeal afresh.
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2012 (6) TMI 123 - CESTAT, MUMBAI
Demand of duty and equivalent penalty on it - Assessee contention that the demand is time-barred as SCN issued by invoking extended period of limitation - Held that:- The allegation of suppression with intent to evade payment of duty is not sustainable as the records clearly depicts that the appellants were filing necessary returns showing taking of credit and utilizing the same for payment of duty during the period in question - set aside the demand and the consequential penalty as time-barred - in favour of assessee.
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2012 (6) TMI 101 - CESTAT, CHENNAI
Separate penalty imposed on goods confiscated on which duty and penalty has already been deposited under another order passed by Settlement Commission - Held that:- It is strange that confiscation and penalty in respect of the impugned goods have been covered by a separate SCN and separate order, whereas the duty on the very same goods has been demanded under another SCN which covers clandestine clearances made earlier. Nevertheless, since the Settlement Commission has imposed a consolidated penalty in respect of the past clearances as well as the impugned consignment after taking note of the fact that the appellants have admitted their duty liability, a separate penalty cannot be sustained. Accordingly, while upholding the confiscation and imposition of redemption fine, penalty separately imposed under the impugned order is set aside.
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2012 (6) TMI 100 - CESTAT, NEW DELHI
Clandestine removal of goods - search - demand imposed on basis of documents which came to the possession of Revenue from uninformed and undisclosed sources - Held that:- Fact of recovery of the documents is very important and the silence on the part of the Revenue to disclose the source of acquisition and possession of the same is fatal to the Revenue's case especially when the same do not stands corroborated in material particular. Charges of clandestine removal are quasi criminal and requires production of positive and tangible evidences. Even the examination of the said documents have led us to conclude that they are fabricated documents and which at the most can raise doubt against the appellants but cannot fasten duty liability on the same.
We note that the investigation in the present case do not lead to the logical end and do not result in the alleged clandestine activities on the part of the appellants. Apart from the loading slips which we have already held as not carrying much evidentiary value, there is virtually no evidence on record to establish clandestine activities of the appellants. In fact, Commissioner has himself observed that the demand is being confirmed on the basis of circumstantial evidence. Therefore, said duty confirmation cannot be upheld - Decided in favor of assessee.
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