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Central Excise - Case Laws
Showing 61 to 80 of 177 Records
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2012 (6) TMI 695
Differential duty demand – assessee contested the denial clause in the impugned Notification No.11/96 under the deemed credit scheme has no applicability and the imposition of penalty under Rule 57I is not appropriate – Held that:- Since the appellants are willing to accept the differential value and make duty payment accordingly in such a case, it would be unfair to deny the deemed credit totally, applying the denial clause in the impugned notification which is meant for cases where a case of fraud, collusion etc. is established - No willful misstatement or suppression found the impugned order-in-appeal is modified to allow the deemed credit and set aside the penalty of Rs.5000/- imposed – in favour of assessee.
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2012 (6) TMI 694
Applicability of Rule 57C(1)(ii) – Assessee used naphtha for manufacture of steam, which in turn was used for generation of electricity and the electricity was supplied to 100% export oriented unit – Held that:- The order passed by the CESTAT is liable to be set aside as in case electricity was not used wholly in the factory of production, the question of availing modvat credit does not arise and it can be availed only proportionately - applicability of Rule 57C (1) (ii) has to be decided by the CESTAT on merits - Rule 57C(1) states that no credit of duty shall be allowed on such quantity of inputs which is used in the manufacture of final products which are exempt from duty or are chargeable to nil duty. However, one of the exceptions provided to Rule 57C (1) relates to cases where the final products are cleared to a 100% EOU - the matter is remanded to the original authority who shall cause the necessary verification and decide the matter afresh keeping in view the provisions of Rule 57C(1)(ii).
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2012 (6) TMI 671
Availment of cenvat credit on the basis of bill of entry, which is in the name of another unit of the appellant – applicability of provisions of Rule 9 (2) – Held that:- In the case of BHEL vs. CCE, Bhopal[2011 (7) TMI 974 (Tri)] it has been decided that just because the bill of entry is in the name of another unit of the same Company and the other unit did not endorse in the bill of entry, credit cannot be denied - as regards applicability of Rule 9 (2) of Cenvat Credit Rules, 2002 except for importer’s name, address and registration number which are required to be mentioned in the bill of entry when the goods are diverted, rest of the particulars were available.
Difference in description and quantity between bill of entry and Lorry Receipt(LR) – Held that:- Assessee’s explanation is acceptable that Phenol’s weight has increased due to addition of water since it cannot be transported as such – as there is no indication that investigation or verification was made to see whether the goods received by the appellant was not Phenol at all – against revenue.
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2012 (6) TMI 670
Denial of credit on the duty paid on capital goods put to use in the factory of production and thereafter the capital goods were exported under bond - Held that:- As capital goods are exported under bond and the Board vide Circular No. 345/2/2000-TRU dt. 28.9.2000 clarified that inputs and capital goods on which credit has been availed can be cleared without payment of duty under bond for export purposes - decided in favour of assessee.
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2012 (6) TMI 669
Waiver of pre-deposit - Marketability - Printing of registers, accounts books, various forms, order books, receipt books and similar articles - goods in question are printed for the use of Central Railway only – Held that:- Goods are not ordinarily capable of bought and sold in the market as these are basically made to run the Railways administration and to maintain the internal records of the Railway. Therefore, the demand is not sustainable - No evidence on record to show that the goods in question which are printed by the Central Railway Printing Press are capable on being bought and sold in the market - Pre-deposit of duty, interest and penalty is waived - Petition is allowed
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2012 (6) TMI 641
Revalidating the issuance of SCNs - Wrong Classification of goods – Revenue allegation that the goods are classifiable under Heading 8537.00 and denial of benefit of Notification No.52/93-CE dt. 28.2.93 - the Commissioner quantified the demand by classifying the goods under Heading 8537 to be adopted only from 14.7.94 and would have only prospective effect - Held that:- As there was no suppression of facts the proviso to Section 11A(1) cannot be invoked for demand of duty - Revenue s prayer for confirmation of entire duty by invoking the extended period cannot be accepted as the earlier order of the Tribunal had categorically held that extended period is not available to the Revenue and demand should be restricted to six months period - Having held that the earlier order, in clear terms, restricts the demand to a period of 6 months, we need not examine the intention of the Members writing the judgement - Revenue's appeal is allowed and the matter is remanded for quantification of duty for a period of 6 months in respect of each SCNs issued to the respondents.
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2012 (6) TMI 640
Demand of duty on scrap - scrap arising in the course of cutting the new plates, pipes etc. for being replaced in the place of corroded portion of the plant, pipe, vessel - Held that:- The only work undertaken with respect to the new metal plates and pipes is process of cutting them to the required size - the Asst. Commissioner erred in assuming that the remnants in the process of cutting has arisen due to mechanical working of metals - The Asst. commissioner has not given any reason as to why he considered such scrap as arising from mechanical working as there can be no mechanical working when the new plates and pipes are cut and used as a replacement for the worn out and corroded portion of the vessels, pipes etc. - the scrap has arisen on account of cutting of new sheets, plates, pipes for the purpose of replacing worn out pipes and it cannot be said that the respondents have manufactured the scrap so as to pay duty on the same – in favour of assessee.
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2012 (6) TMI 639
Entitlement to Cenvat credit on catering service received - Held that:- Since Revenue has not placed a copy of show cause notice while filing its appeal and once the authority is satisfied that the invoices placed by learned Counsel relates to discharge of obligation under Factories Act, there shall not be difficulty to resolve the dispute - in view of the ratio laid down in COMMR. OF C. EX., AHMEDABAD-I Versus FERROMATIK MILACRON INDIA LTD [2010 (4) TMI 649 (HC)]the service tax paid on outdoor catering services by the canteen located in the respondent’s manufacturing premises has to be considered as an input service relating to business and that CENVAT credit is admissible the appellant deserves hearing - matter is remanded to the Adjudicating Authority to consider the issue in accordance with law laid down .
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2012 (6) TMI 638
Paper transaction to claim Cenvat credit - Held that:- Mode of transportation claimed by the appellants was false as the goods in question claimed to have been transported and the quantities transported shows that the same ranges from 7.180 M.T. to 20.190 M.T as carrying such a huge quantity by motor cycle or scooter is inconceivable - as no offender be allowed to retain undue benefit made at the cost of public first appellate order is reversed and the adjudication order is restored and all the five appeals are allowed in favour of Revenue - in favour of revenue.
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2012 (6) TMI 611
Delay in payment of duty,interest and penalty – Revenue appeal that the Commissioner had no authority or power to accept the payment made beyond the period of one month from the date of communication of the order – assessee contested that the bankers did not accept the payment because there was no registration number and there was delay in giving temporary registration number by the Assistant commissioner - Held that:- As there is no provision in the law u/s 11AC to condone the delay in payment of duty, interest and penalty for whatever reason by any authority, therefore Commissioner (Appeals) has clearly travelled beyond his powers vested in him under the law – as the OIO clearly mentions the assessee’s registration number, his written submission have not explained what happened to the registration number they already had and on what date they approached the Assistant Commissioner and what date temporary registration number was given to them – as there is one year of delay in payment of duty, no question of condoning the delay arise – in favour of assessee.
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2012 (6) TMI 610
Penalty imposed under Rule 25(1)(b) – revenue stand that appellant has knowingly received goods which did not suffer of central excise duty and did not account for the same even though he was a registered dealer – Held that:- In the absence of any evidence to show that cenvat credit has been passed on in respect of these goods and there was an intention to pass on cenvat credit, merely because the appellant received the goods which were not duty paid, imposition of such harsh penalty is not justifiable - the submission of appellant that no proceedings were initiated against the manufacturer also would provoke for a lenient view as regards penalty - as no allegations of improper maintenance of accounts or improper passing on cenvat credit against the appellant who is a registered dealer the penalty imposed equal to the duty is very harsh and is reduced to Rs 10,000.
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2012 (6) TMI 609
Dismissal of appeal by first appellate authority - non-compliance of the Stay Order directing to deposit 50% of the penalties imposed - appellant have filed application declaring their unit as a sick unit - Held that:- As decided in the case of CCE Vs. Saurashtra Cement Ltd.[2010 (9) TMI 422 (HC)] it is settled law that unless the first appellate authority records some findings on the merits of the case, Tribunal should not venture into the merits of the case - as appellant company has filed an application for being declared as a sick unit, pre-deposit of any amount would create undue hardship to the appellants - appeals are remanded back to the first appellate authority, to reconsider the issue afresh without insisting upon any further pre-deposit, as the appellants have already deposited entire amount of duty along with interest.
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2012 (6) TMI 608
Extended period of limitation – respondents filed an application for amendment in the registration certificate - respondents also filed return with the department which showed that appellants had cleared goods at a concessional rate of duty and in view of the fact that registration certificate had been amended, department cannot be said to be unaware of the fact of clearance of Stock manufactured prior to 17-4-1997 - Held that:- Even after the visit of the officers on 8-5-1997 for preventive checks, the show cause notice could have definitely been issued within one year or six months – extended period of limitation was not available to the department
In case of Neminath Fabrics Pvt. Ltd. (2010 (4) TMI 631 (HC) ), once the facts necessary to permit the department extended period of limitation are established on record, thereafter, the question of initiating proceedings within six months/one year from the date of knowledge of the department, is not relevant
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2012 (6) TMI 586
Whether appellant is required to reverse the Cenvat credit availed on the inputs and the capital goods, while clearing the same to its sister unit or is required to pay duty on the higher rate, applicable at the time of clearance of the same - Held that:- Issue is no longer res integra. It is held in various decisions that during the relevant period, reversal of Cenvat credit originally taken is required to be followed, at the time of clearance of inputs/capital goods as such. See Eicher Tractors Vs. CCE, Jaipur (2005 (9) TMI 340 (Tri))
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2012 (6) TMI 585
Denial of SSI exemption - the specified goods manufactured by assessee are affixed with the brand name of a foreign person, or a trader who is not a manufacturer – appellants contention that that the impugned brand names were owned by the 100% holding companies of the appellant-company which should not be considered completely different from its subsidiary - Held that:- Following the judgment of the Single Bench of the Calcutta High Court in the case of ESBI Transmission Pvt. Ltd. v. CCE - 1997 (1994 (9) TMI 99 (HC)) stating that it has been held that there is no bar to availing SSI exemption if the unit is using a trade mark belonging to the foreign firm so long as the said unit is exclusive owner of the said trade mark in India - in favour of assessee.
Whether the price at which the respondent sold the product should be treated as cum duty price and therefore the excise duty should be deducted from the price for arriving at the assessable value – Held that:- The case to be remanded back to the Commissioner for re-quantification.
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2012 (6) TMI 584
SSI Exemption - brand name - Invoking extended period of limitation u/s 11AC - technical know-how agreement entered between the assessee and the West German Company were not disclosed to the Department – the goods manufactured by the assessee have been cleared by the assessee with an endorsement “in collaboration with the West German Company” which constitutes user of the brand name - Held that:- Inscribing words “in technical collaboration with West German Company” would not constitute user of the brand name of the West German Company deserves acceptance - The fact that the assessee did not disclose the 1975 agreement does not enhance the case of the revenue, because the said agreement was only a technical know-how agreement and not an agreement for user of the brand name - the technical know-how agreement entered into by and between the assessee and the West German Company has expired in the year 1980 and the same has not been renewed thereafter – as there are various decisions of Tribunal and Apex court against revenue, merely because, the Apex Court subsequently in the case of Grasim Industries Ltd(2005 (4) TMI 64 (SC)) ruled to the contrary, it could not be said that the assessee had suppressed material facts - against revenue.
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2012 (6) TMI 583
Recovery of deemed Cenvat Credit availed through fraudulent bills - penalty under Rule 27 imposed - liability of bank - Held that:- The act of discounting export bills or sending export bills for collection as part of normal banking operations by the appellant bank would not render the export goods liable to confiscation and the bank liable to penalty - a banking transaction would not normally violate the Central Excise law or the Rules, especially when the same is carried out as part of the normal banking operations - no penalty can be imposed on the banking company as the maximum penalty under the said Rule is only Rs.5,000 whereas Commissioner imposed a penalty of Rs.5 lakh u/r 27 which show clear non-application of mind and ignorance - in favour of assessee.
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2012 (6) TMI 558
Classification of the respondent s product Ponds Oil Control Face Wash - Revenue appeal that the same should be classified as Skin Care preparation falling under Chapter Heading 3304.00 of the Central Excise Tariff Act rather than under the Heading 3402.90 as Organic Surface Active Agent (OSA) accepted by Commissioner (Appeals) – Held that:- Since the disputed issue stands decided in favour of the respondents by several decisions of the Tribunal in MUL DENTPRO PVT. LTD. Versus COMMISSIONER OF C. EX., VAPI [2007 (8) TMI 150 (Tri)], ALFA PACKAGING Versus COMMISSIONER OF C. EX., VAPI [2010 (10) TMI 400 (Tri)] find no merits in the Revenue s appeal – against revenue.
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2012 (6) TMI 557
Penalty on the Director for the Assessee Company – Rule 26 or Rule 27 – Held that:- As no excisable goods are confiscated and the offence alleged against these respondents are negligence, therefore, the said offence does not fall under Rule 26 of the Excise Rules - liable to pay Rs. 5,000 - penalty as ordered by the Tribunal – against revenue.
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2012 (6) TMI 556
Recovery of duty from a successor in business - legal heirs of a deceased assessee - Held that:- the proviso is attracted to cases in which the person chargeable to duty transfers or dispose of the business which he is carrying on during his lifetime. If any amount was due from the predecessor in title, the successor in title is liable and it is to be recovered from him. We do not find any provision in the Act which foists any such liability in the case of intestate succession. In other words, there is no provision which empowers the authorities to recover due from a deceased assessee by proceeding against his legal heirs. The way Sec. 11 and 11A are worded, it is amply clear, the legislature has consciously kept away the legal heirs from answering to liabilities under the Act.
In all the cases of such commercial activity being carried on, except that of an individual, the death of any person who is involved in the manufacturing activity, has no impact on the business or manufacturing activity. Even after his death, the manufacturing activity goes on, the legal entity which is carrying on the business is not disrupted and the commercial activity is continued without any interruption. In the case of an individual, on his death, the manufacturing activity comes to an end. To hold his legal heirs liable for the dues under the Act from the manufacturer who is the person who is charged with the duty to pay tax would be unreasonable.
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