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Central Excise - Case Laws
Showing 21 to 40 of 189 Records
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2012 (8) TMI 933
Penalty - Whether the Tribunal below committed substantial error of law in giving benefit of the reduced penalty by totally misconstruing the proviso to Section 11AC of the Central Excise Act, 1944?
Held that: - As per the First Proviso of the section, if assessee pays duty and interest within 30 days from the date of communication of the order, the amount of penalty will be reduced to 25% of the duty determined and the assessee would have to pay penalty to the extent of 25% only. The Second Proviso says that the benefit of the First Proviso would be available provided that the reduced penalty is also paid within the period of 30 days referred to in that Proviso.
The option to pay within 30 days under the Proviso concerned to section 11AC of the Act, if not given by the adjudicating authority, such option should be given to the assessee at the appellate stage and the period of 30 days would commence from the date of giving such option.
No Substantial error of law is committed by the Tribunal in giving benefit of the reduced to the respondent-assessee under the Proviso to section 11AC of the Act. The benefit of payment of reduced penalty can be availed by the assessee at the appellate stages also - appeal dismissed - decided against Revenue.
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2012 (8) TMI 931
Benefit of notifications dated 28.02.1999 and 01.03.2000 - The petitioners never appeared to be interested in seriously pursuing their challenge to the aforesaid orders. They did not make any attempt to restore the appeal which was dismissed only for nonremoval of office objections - Held that: - When the proceedings of the court are made instrumental only for the purpose of whiling away time and to rid off the obligations arising from orders of court of law, it amounts to abuse of process of law - The conduct of the petitioners showed that they acted in that fashion and abused the process of law by approaching court/forums at their own convenience using the process to avoid the consequences of the orders of the competent authorities. It was far from bonafide.
The conduct of the petitioners was not honest and their plea was not bonafide. If the events noted hereinabove are recapitulated, it manifests that the petitioners wanted to dodge at every stage - petition dismissed - decided against petitioner.
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2012 (8) TMI 930
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... ... ..... , 2011 and direct the Commissioner to pass fresh order on merits after communicating the grounds on which the Commissioner disagrees with the findings recorded by the Commissioner and after hearing the petitioner. 3. Mr. Jetly, learned counsel appearing on behalf of the respondents states that the Commissioner would furnish to the petitioner the grounds for disagreeing with the findings recorded by the Inquiry Officer within a period of 3 weeks from today. Counsel for the petitioner states that the petitioner would file his reply on the grounds so furnished within a period of 2 weeks thereafter. The Commissioner would then pass a fresh order on merits after hearing the petitioner within a period of 4 weeks from the date of receipt of the reply from the petitioner. 4. It is made clear that till a fresh order is passed on merits, the petitioner shall not carry out business under the CHA licence in question. 5. Rule is made absolute in the above terms with no order as to costs.
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2012 (8) TMI 922
Waiver of pre-deposit of duty, interest and penalty - The waste obtained during the manufacture of sugar are referred as bagasse, press mud and bio-compost. The Revenue is of the view that the applicants availed credit in respect of common inputs and input service in the manufacture of final product cleared on payment of duty and in respect of the goods which are cleared without payment of duty and are not maintaining separate account therefore, the applicants are liable to pay appropriate duty as provided in the CCR, 2004.
Held that: - Bagasse is the waste product left after the crushing of sugarcane. Therefore, by no stretch of imagination it can be said that the assessee possibly could have maintained separate account for the inputs for production of sugar and molasses (excisable item) and bagasse - Moreover, neither the show cause notice nor the impugned Order-in-Appeal mentions as to which common Cenvat credit availed inputs have been used in manufacture of sugar and molasses (dutiable final products) and bagasse (exempted final product). Since Bagasse emerges at sugarcane crushing stage, there is no possibility of any input-chemicals etc. having been used at that stage.
Waiver granted - appeal allowed - decided in favor of appellants.
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2012 (8) TMI 921
Valuation - includibility - bullet-proofing charges - job-work - Revenue is demanding duty after adding the bullet-proofing charges to the assessable value of the Jeep on the ground that the order received for Bullet Proof Jeep and the appellants supplied the same
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2012 (8) TMI 913
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... ... ..... d by the Revenue. 3.After hearing both sides, we find that an order was passed by the first appellate authority on the matter of rebate claim, the appeal lies with the Joint Secretary in the Government of India. Provisions of Section 35B of Central Excise Act, 1944 debar us from any action in the case where first appellate authority has passed an order the question of rebates. Accordingly, we transfer the file to Joint Secretary of the Government of India for further action. (Dictated and pronounced in the Court)
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2012 (8) TMI 912
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... ... ..... of goods for the purpose of assessment would lie before the Apex Court. Correspondingly, under Section 35G of the Act, which pertains to appeal to the High Court, it is provided that an appeal shall lie to the High Court from every order passed by the Appellate Tribunal, not being an order relating to the rate of duty of excise or to the value of goods for the purpose of assessment. Thus, by virtue of combined application of Section 35L read with Section 35G of the Central Excise Act, 1944, in a case where besides others, the question involved is one having relation to the rate of duty of excise or to the value of goods for the purpose of assessment arising out of the judgment of the Tribunal, appeal would lie exclusively before the Supreme Court and appeal before this court would not be maintainable. 3. In that view of the matter, the present appeal is dismissed as not maintainable leaving it open to the appellant to take recourse to the remedy available under the law.
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2012 (8) TMI 909
Benefit under Notification No. 14 of 1997, dated 3rd May, 1997 - Whether the duty payable with regard to Residual Fuel Oil (RFO) and Low Sulphur Heavy Stock (LSHS) shall be the same or not - Held that:- From the plain reading of the aforesaid notification it appears that RFO does not fall within the six items which have been included under the separated, with regard to Modvat credit. The Tribunal had relied upon the notification dated 3rd May, 1997 and reversed the findings of adjudicating authority. The findings recorded by Tribunal seems to be based on the consideration of notification dated 3rd May, 1997, proviso to which includes only naphtha, furnace oil, low sulphur heavy stock, light diesel oil, bitumen and paraffin wax. These six items had been taken out under Chapter 27 of the Schedule to the Central Excise Tariff Act, 1985 giving them different status with regard to different restricted Modvat tariffs. RFO is not covered under the proviso in question. - no substantial question of law involved, which may call for any interference under Section 35H of the Central Excise Act - Decided in favour of assessee.
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2012 (8) TMI 906
Benefit of Small Scale Exemption - Clandestine removal of goods - Supreme Court dismissed the appeal of assessee filed against the decision of High Court [2012 (5) TMI 577 - PUNJAB AND HARYANA HIGH COURT], finding no ground to interfere in the decision of the high court wherein high court upheld the Tribunal's findings. However, Supreme Court directed that if the petitioner complies with the previous order of Tribunal, the order of stay as well as petitioner’s appeal shall be revived and disposed of on merits.
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2012 (8) TMI 904
Duty demand - Penalty u/s 11AC - Disallowance of CENVAT Credit - Held that:- Commissioner (Appeals) has fallen in error disallowing the Cenvat credit availed by the assessee company in respect of the excise duty paid on the blades and imposing penalty on the assessee company as well as its Prop. Sh. Govind Singh. - Decision in the case of CCEC & ST, Daman v. Prime Health Care Products reported in [2010 (10) TMI 881 - GUJARAT HIGH COURT] - Decided in favour of assessee.
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2012 (8) TMI 903
Penalty u/s 11AC - exemption under Notification No. 9/1998-C.E., dated 2-6-1998 - appellants were clearing the goods with the brand name of others - Held that:- As the appellants were clearing the goods under the brand name of M/s. Kothari Industries, therefore, in view of the decision of the Hon’ble Supreme Court in the case of CCE v. Rukmani Pakkwell (2004 (2) TMI 69 - SUPREME COURT OF INDIA), the appellants are not entitled for the benefit of SSI Notification. - As the appellant itself claiming the benefit of Notification No. 9/98-C.E. in the declaration filed in the year 2000. We find that the Revenue denied the SSI notification on the ground that the appellants were clearing the goods in the brand name which does not belong to them and registered in the name of M/s. Kothari Industries. The provisions of Notification No. 9/99-C.E. are also the same. - appellants are entitled for cum-duty price. - Decided partly in favour of assessee.
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2012 (8) TMI 902
Clandestine removal of goods - Imposition of penalty - Held that:- By the first appellate order, there is a concurrent finding of escapement of recording of the aforesaid quantity of filters which caused prejudice to Revenue. Once no satisfactory explanation came to record as to why the goods escaped accounting that makes no difference to law whether sold in domestic market or sent for export. For no further explanation today to explain the reason why the aforesaid quantity remained unexplained before the audit, adjudication or at first appellate stage, there is no scope to intervene to the appellate order - Decided against assessee.
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2012 (8) TMI 897
Recover of duty u/s 11A - Denial of rebate claim - original authority initially sanctioned rebate claims - After sanction of rebate claims it had been observed by the applicant department that the respondents failed to submit copy of BRC (Bank Realization Certificate) w.r.t. exports in question - violation of Board’s Circular No. 354/70/97-CX., dated 13-11-1997 - Held that:- Section 11A of Central Excise Act, 1944 being an independent substantive provision, the appellate proceedings are not required to be initiated before issuing Show Cause Notice under Section 11A if there are grounds existing such as short levy, short recovery or erroneous refund, etc. Section 11A is an independent substantive provision and it is a complete code in itself for realisation of excise duty erroneously refunded. There are no preconditions attached for issuance of notice under Section 11A for recovery of amount erroneously refunded. Decision of Bombay High Court [2002 (2) TMI 132 - HIGH COURT OF JUDICATURE AT BOMBAY] has been upheld by Hon’ble Supreme Court reported as [2003 (4) TMI 558 - SUPREME COURT] holding that recovery of duty erroneously refunded is valid in law under Section 11A of Central Excise Act and there is no need of first filing the appeal against the order by which refund was erroneously sanctioned. - Decided in favour of Revenue.
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2012 (8) TMI 896
Denial of rebate claim - Bar of limitation - Delay due to non-availability of dealing (Central Excise) Assistant because he met with a serious accident and further lack of documents without which the department would not have accepted the claim - whether revision application is filed within statutory time limit - Held that:- The relevant date for filing rebate claim as given in Explanation B(a)(i) of Section 11B, is the date on which ship or the aircraft in which export goods are loaded, leave India. The one year time limit has to be calculated from said relevant date and not from date when the applicant was able to make claim claimed by applicant irrespective of the truth or otherwise in reasons of extreme contingencies for which energy one has to think or an alternative arrangements. - rebate claim filed after stipulated time limit of one year being time-barred in terms of Section 11B of Central Excise Act, 1944 is rightly rejected by the Commissioner (Appeals). - Decided against assessee.
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2012 (8) TMI 892
Classification of goods - Classification under CTH 4821.00 or under Heading 4819.19 - Held that:- In the case of goods in question it is fairly clear that the product is used as wrapper and such product is classifiable under Heading 4819.19 as claimed by the Revenue since such sleeves are just not for indicating the nature, identity, manufacturer, price, etc., of the product but are used as wrappers, The position is obvious in the case of gift wrappers supplied to Sahara Airlines and is a reasonable inference in the case of Rolon Belt Sleeves. So we order classification of the product under sub-heading 4819.19. - The respondents had raised the issue that the demand is raised considering cum-duty-price as assessable value. They pray that the price realized should be split as assessable value and duty in which case the demand will come down. We are of the view that such benefit should be given in this case.
Since this is a dispute about classification of the goods and no special role played by the Director is brought on record to impose penalty on him, we find it proper to waive penalty imposed on the Director of the Respondent Company and it is ordered accordingly. - Decided partly in favour of Revenue.
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2012 (8) TMI 890
Demand u/s 11A - Denial of CENVAT Credit - Held that:- At the time of obtaining registration HBSA Pvt. Ltd. had submitted a ground lay out plan, which was approved by the Superintendent, Customs and Central Excise, Range-6, Division-III, Ghaziabad on 21-8-1998 and in which the engine assembly on ground flour in the premises of Majestic Auto Limited was clearly demarcated. The plant and machinery was installed and was never removed from the premises. The I.C. Engines manufactured by HBSA Pvt. Ltd. in the same premises were used by the appellant. Once it was admitted that the capital goods, on which Modvat Credit was taken by the appellant remained installed in the same premises, which was leased out and continued to be engaged in the manufacture of I.C. Engine, which was further used in the manufacture of two wheelers and that a separate registration certificate was obtained by HBSA Pvt. Ltd., there was no removal of goods. The capital goods remained installed in the same premises and thus even if the premises were transferred on lease, the capital goods even if they were deemed to be installed in the premises of HBSA Pvt. Ltd., Rule 57-S, would not be attracted.
Since a separate registration certificate was obtained by which the ground plan was approved by the Central Excise Department, there was no case made out for attracting Section 11A of the Act as there was no intention to evade the payment of duty nor HBSA Pvt. Ltd. could be made liable for penal action under the provisions of Rule 209A of the Central Excise Rules. - Decided in favour of assessee.
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2012 (8) TMI 865
CENVAT Credit - Whether, in the facts and circumstances of the case, the Tribunal has justified in allowing Cenvat credit on the grey fabrics as ‘input’ of the respondent - Held that:- While it may be that when the appeal was preferred, the circular dated 17-8-2011 was not issued. However, it appears from record that the appeal was posted before the Court first time on 11-12-2011 and the notice was issued on 12-11-2012. At the time of issuance of notice in the appeal, the circular dated 17-8-2011 was very much in force and the monetary limit of 10 lakhs provided therein was applicable. Had the said aspect been pointed out to the Court, the Court would not have issued the notice. In any way, when this appeal has come up for consideration, the circular is in vogue and the monetary limit applies. We, therefore, do not find it necessary to go into the merits of the appeal, as the disputed amount in the present appeal is below 10 lakhs.
The department is bound by its own Circular and the instruction thereof. We are informed that no other circular withdrawing or reducing the monetary limit has been issued by the Department and circular dated 17-8-2011 hold the field as far as the prescription of monetary limit for filing appeal before High Court is concerned. It is pertinent to mention that we have taken the similar view in various tax appeals. Decided against Revenue.
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2012 (8) TMI 862
Stay application - Held that:- application for transfer of unutilized Cenvat credit was given after surrender of registration of the factories. Where the registration of a factory is surrendered, prima facie, no factory as defined under the Central Excise Act subsists to be transferred. Sub-rule (1) of Rule 10 ibid contemplates transfer of unutilized Cenvat credit upon shifting of factory to another site or transfer of its ownership to another person. Sub-rule (3) states that such transfer of Cenvat credit shall be allowed only if the stock of the inputs as such or the inputs in process or the capital goods is also transferred along with the factory to the new site or along with the transfer of ownership of the factory to another person - Stay granted.
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2012 (8) TMI 861
Denial of CENVAT credit - Penalty u/s 11AC - Credit had been taken on certain invoices without receipt of the inputs - Held that:- The show-cause notice issued by the Department clearly attributed fraud to the appellant, which is one of the grounds under Section 11AC for imposition of penalty. The show-cause notice also invoked Rule 15 of the CENVAT Credit Rules, 2004 which expressly made Section 11AC applicable to a case of irregular and fraudulent availment of CENVAT credit. In this factual scenario, the appellant has no case against the penalty imposed under Section 11AC of the Central Excise Act, though they are entitled to the benefit of 1st proviso to Section 11AC of the Act. Indeed, the appellant has already availed themselves of this benefit by paying up 25% of the duty amount towards penalty under Section 11AC within the period prescribed under the said proviso - Decided against assessee.
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2012 (8) TMI 860
CENVAT Credit - Suppression of material facts - Intention to evade duty - Held that:- it had been duly noted by the original authority that the assessee had been filing periodical returns with relevant invoices. The appellate authority also noted this factual position and rejected the Department’s allegation that the assessee had suppressed material facts with intention to evade payment of duty. The documents filed by the learned Superintendent(AR) support this finding of the lower appellate authority. The assessee had been filing returns from month to month indicating therein the CENVAT credit availed on capital goods, inputs etc. The invoices on the basis of which the CENVAT credits were availed were also furnished with these returns. These invoices (copies produced) clearly indicated the correct description of the goods (MS plates, angles, channels etc.) apart from the amount of duty paid thereon. Thus the material facts were duly disclosed to the Department by the assessee. There was no suppression of facts by them, let alone with intention to evade payment of duty - show-cause notice invoked the extended period of limitation without any valid ground. - Decided against Revenue.
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