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Central Excise - Case Laws
Showing 81 to 100 of 189 Records
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2012 (8) TMI 819
Eligibilty for Cenvat credit - Import of plastic granules - Held that:- On going through the records, it is apparent that the appellant have availed Cenvat credit in respect of inputs which resulted in waste. Admittedly the excise duty in respect of the aforesaid waste has been paid. Therefore, at this initial stage, we are of the view that the appellants have been able to make out a strong prima facie case justifying waiver of condition of pre-deposit. In view of the above, requirement of pre-deposit of Cenvat credit demand, interest and penalty is waived and the recovery thereof stayed pending disposal of the appeal - Stay granted.
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2012 (8) TMI 791
Valuation - the wholesale price declared by the assessees is much less than the cost of production - what will be the "normal price" for the purpose of excise duty in terms of Section 4(1)(a) of the Act ? - Held that:- To attract Section 4(1)(a) what is required is to determine the 'normal price' of an excisable article which price will be the price at which it is ordinarily sold to a buyer in the course of wholesale trade and in the context of Section 4(1)(a) the word 'ordinarily' does not mean majority of the sales but that price should not be exceptional and by no stretch of imagination, can include extra-ordinary or unusual. In the instant cases as the assessees sell their cars in the market continuously for a period of five years at a loss price and claims that it had to do only to compete with the other manufacturers of cars and also to penetrate the market and if such sales are taken as sales made in the ordinary course, it would be anathema for the expression 'ordinarily sold'. Thus since the price charged for the sale of cars is exceptional,it cannot be accepted to give a meaning which fit into the meaning of the expression 'ordinarily sold'. In other words, in the transaction under consideration, the goods are sold below the manufacturing cost and manufacturing profit. Therefore, such sales may be disregarded as not being done in the ordinary course of sale or trade. Thus as the assessees are not fulfilling the conditions enumerated in Section 4(1)(a) of the Act and therefore, the valuation has to be done in accordance with Section 4(1)(b).
Under Section 4(1)(b) of the Act, 1944, any goods which do not fall within the ambit of Section 4(1)(a) i.e. if the 'normal price' cannot be ascertained because the goods are not sold or for any other reason, the 'normal price' would have to be determined in the prescribed manner i.e. prior to 1st day of July, 2000, in accordance with Rules, 1975 and after 1st day of July 2000, in accordance with Rules, 2000.
A bare reading of the rules does not give any indication that the adjudging authority while computing the assessable value of the excisable goods, he had to follow the rules sequentially. The rules only provides for arriving at the assessable value under different contingencies. Again, Rule 7 of the Valuation Rules which provides for the best judgment assessment gives an indication that the assessing authority while quantifying the assessable value under the said Rules, may take the assistance of the methods provided under Rules 4, 5 or 6 of the Valuation Rules. Therefore, contention of the Assessee that the assessing authority before invoking Rule 7 of the 1975 Valuation Rules, ought to have invoked Rules 4, 5 and 6 of the said Rules cannot be accepted - thus since the assessing authority could not do the valuation with the help of the other rules, has resorted to best judgment method and while doing so, has taken the assistance of the report of the 'Cost Accountant' who was asked to conduct special audit to ascertain the correct price that requires to be adopted during the relevant period. Therefore, exception of the assessable value cannot be taken of the excisable goods quantified by the assessing authority - against assessee.
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2012 (8) TMI 790
Online platform to facilitate the sale of goods by various merchants - Whether activities proposes to undertake warehouse amount to manufacture ? - Held that:- None of the assessee's activities alter the primary packing or the original labeling affixed by the merchant under applicable regulations. Also no change is made in the MRP/RSP of any item received in the warehouse. All the labeling requirements are required to be fulfilled by merchants themselves and the goods as received in the applicant's warehouse would have the MRP/RSP already pre-affixed or pre-printed - As the applicant carries all their activities to protect the merchant's goods, facilitate inventory management and the logistics of storage, retrieval, shipment and transportation of goods, thus, the different types of stickering done by them cannot come within the meaning of the expression labeling or relabeling for the purposes of the Act and would not amount to manufacture
As the goods as received would be in retail packages with all required labeling and marking has not been disputed. As that the applicant's facility is only one of the channels for distribution available to the merchants who use it. The products that they list on the applicant‟s website would also, in the vast majority of cases, get distributed and sold through other conventional channels of retail trade and in the very form in which they are received in the applicant‟s warehouse. Hence the conclusion that inexorably follows is that they are already marketable.
Thus, as the applicant is providing an online retail distribution channel and the associated logistical services His role therefore does come across clearly as one of service provider as the activities described in the application do not amount to manufacture within the meaning of S. 2(f) of the Central Excise Act, 1944.
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2012 (8) TMI 789
Maintainability of appeal – Held that:- No opinion is formed by the Committee of Commissioners about the illegality of the order as required under Section 35B of the Central Excise Act - There was no authorization by the Committee of Commissioners to file appeal on its behalf - record also does not disclose that these two officers applied their mind to the issue and recorded any opinion, as per the requirement of Section 35B of the Central Excise Act that the order of the Commissioner (A) was not legal or proper and warranted to be challenged by filing an appeal - there should be a meaningful consideration which should be reflected on the note sheets in order to comply with the requirement of Section 35(2) of the Act - file does not show any such satisfaction or opinion having been recorded by the Committee of Commissioners – appeal dismissed
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2012 (8) TMI 788
Whether no provision in the Act empowering the Board to issue directions to the Assessing Authorities or the Appellate Authorities in the matter of deciding disputes between the persons who are called upon to pay duty and the department – Held that:- Such orders are required to be passed by exercising independent mind and without impartiality and while doing so, such Authorities are required to consider various evidences made available to them - Circulars issued by the Department which are in the nature of guidance to such Authorities and, therefore the contents of such circulars could also be considered as evidence available before them - Assessing Authority has come to an independent finding on its own and therefore – matter remanded to Assessing Authority to consider the matters afresh
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2012 (8) TMI 758
Penalty u/s 11AC - common inputs used for manufacture of dutiable as well as exempted goods - alleged non-payment of duty as per the provisions of Rule 57CC of the Central Excise Rules, 1944 - assessee contended that High Court had set aside demand with reference to the longer period available under the proviso to Section 11A(1) - Held that:- In present case, demand has been raised beyond the normal period of 6 months provided under the provisions of Section 11A at the material time. Now, since the demand itself does not survive, the penalty is not warranted. Order set aside and the Appeal of assessee is allowed.
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2012 (8) TMI 757
Revenue appeal against Order of Commissioner (Appeals) allowing the rebate claim - Held that:- As per the provisions of Sec.35B of the Central Excise Act, the Tribunal has no jurisdiction in respect of the rebate claims where the order is passed by the Commissioner of Central Excise(Appeals) - appeal is dismissed as non-maintainable.
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2012 (8) TMI 756
Whether Tribunal was justified in ignoring the two Notifications on which reliance is placed by the revenue – Held that:- Appeal involves the interpretation of the aforesaid two Notifications - As the order relate to “among other things, the determination of question having a relation to the rate of duty of excise”, it is the Apex Court alone which is competent to adjudicate the said dispute. The jurisdiction of the High Court is ousted - appeal is rejected
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2012 (8) TMI 724
Interest on Refund - revision application by Revenue contested that rebate claim has been paid within three months from the date of sanctioning the claim no interest is payable - Held that:- As in the case of Jindal Drugs Limited (2012 (2) TMI 78 - BOMBAY HIGH COURT ) the rebate claim was admittedly paid within three months of sanctioning the claim and the issue is covered by this decision, no fault can be found with the decision of the Joint Secretary to the Government of India in rejecting the revision application filed by the Revenue against allowance of interest claim.
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2012 (8) TMI 723
Application for waiver of pre-deposit of penalty - Held that:- As Commissioner (Appeals) dismissed appeal for non-compliance with the provisions of section 35F for not making pre-deposit of penalty ignoring that assessee already paid total interest of involved in this case - as Commissioner (Appeals) has not decided the issue on merits Appeal allowed by way of remand.
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2012 (8) TMI 722
Exemption Notification No. 3/2004 – Water supply plants for agricultural and industrial use - Exemption to machinery, instruments, equipments and pipes used therein – whether water which is stored reservoir within thermal power plant is used for the industrial purpose or for other purposes also - whether water is further treated before being used for industrial purposes – Held that:- From “Dahej raw water reservoir, the raw water is pumped to industries and existing industries are treating/processing this raw water at their respective water treatment plant to make it fit for industrial uses - pipes have been laid for carrying water for industrial use and the water has been treated by the respective industries or by Thermal Power plant, as the case may be, to make it fit for the purposes for which it was intended - appellants eligible for the exemption Notification No. 3/2004, dated 8-1-2004 - pre-deposit waived
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2012 (8) TMI 721
Pre-deposit – penalty – Held that:- Main defaulter/MHL has been granted immunity and is not to pay any penalty and, therefore, these appellants should not be called upon to pay the penalty has not been addressed at all - where against main noticee/defaulter, the Settlement Commission has granted immunity from payment of any penalty, no penalty can be imposed upon other co-noticees – pre-deposit waived
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2012 (8) TMI 720
Cenvat credit – rebate claim on export of goods - applicant is a manufacturer of readymade garments - applicant have availed cenvat credit on inputs contrary to the conditions stipulated under Notification 30/2004 – Held that:- When goods are exempted from payment of duty, no cenvat credit is permissible under Rule 6(1) of the Cenvat Credit Rules, 2004. Even the Cenvat Credit on the input services is not allowed for exempted goods - applicant has not declared on ARE-1s that they are clearing the goods under Notification No. 29/2004-C.E., on payment of duty whereas they were clearing the goods for home consumption under Notification No. 30/2004-C.E., at nil rate of duty - applicant was not allowed to pay duty on the exempted goods as per proviso to Section 5A(1A) of Central Excise Act, 1944 and no Cenvat Credit on the input services is available under Rule 6(1) of the Cenvat Credit Rules, 2004.
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2012 (8) TMI 691
Denial of cenvat credit - manufacturer of steel tubular poles - Held that:- Consedering the entire process it is evident that the MS black Tube/pipes as initially procured cannot be termed as pipe/tube of specific diameter and this product cannot be sold in the market as pipe/tube which are inputs for manufacture of steel tubular pole. Thus after the processing pipe/tube a distinct product comes into being which is known in the commercial parlance as steel tubular pole which has character and was distinct from MS black Tube/pipes. This process amounts to manufacture and as such no merit in the plea of the Department that steel tubular poles cleared on payment of duty by the respective assessees were not leviable with excise duty.
As the appellants used duty paid inputs for the production of their final product which was cleared to the customers on payment of excise duty & department having accepted the excise duty on the final product cannot be permitted to deny cenvat credit on the inputs used for the manufacture of the final product on such a technical plea - in favour of assessee.
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2012 (8) TMI 690
Aluminium structurals - Manufacture - demand of excise duty- assessee was awarded the works for structural glazing/aluminium joinery - Held that:- The entire process of fixing the glazing system is done by fixing the aluminium section on the brackets and by sticking the glass using silicon. For this reason, semi-unitized glazing system is internationally known as sticking glazing system. - the ratio of the Mahindra & Mahindra judgment [2005 (11) TMI 103 - CESTAT, NEW DELHI] settled the dispute against the assessee.
Period of limitation - appellant suppressed the fact of manufacture of aluminium structures in erecting the structural glazing system in the RMZ premises - demand is not barred by limitation
Regarding quantification and extension of Cenvat – Held that:- Duty due should be quantified on the assessee producing the relevant documents and cenvat credit allowed in accordance with law - goods are liable to duty as manufactured goods - grant of benefit of cenvat credit on production of necessary documents
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2012 (8) TMI 689
Cenvat credit - Whether there could be any intention to evade payment of duty on the part of the applicants when the applicants always had the credit balance in their RG 23A Part II Register even after discharging duty liability and at no point of time they paid duty from their PLA – Held that:- At the time of the search, private records were found. The assessee is not able to make out a case that the private records, which were found from the business premises - on physical verification of the inputs, such inputs were not found there - assessee is not able to dispute this finding recorded by the Tribunal in this regard - assessee is not entitled for any benefit of the credit balance available in RG 23A Part II Register inasmuch as in the present case, on the basis of the seized private records, the suppression of production was detected - in favour of the revenue.
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2012 (8) TMI 658
Cenvat credit on the inputs used in or in relation to the manufacture of dutiable as well as the exempted final product - non-maintenance of separate set of accounts or records - assessee contended proportionate reversed of credit and application of retrospective amendment of Cenvat Credit Rule 6(3) by Finance Act, 2010 - Held that:- We set aside the impugned order and remit back the matter to the Commissioner Adjudication for deciding the matter afresh after taking into account evidence relating to cenvat credit and also making assessment of interest payable.
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2012 (8) TMI 657
Adjournment – Held that:- Merely because the advocate is on summer vacation, it cannot be a ground for adjournment of the matter - request for adjournment is rejected
Demand – personal penalty - classification - Polyurethane Moulded Foam Seat Cushion - department’s contention is that the same is classifiable under Chapter sub-heading 39263010 whereas the assessee’s contention is that the same is classifiable under Chapter 94 – Held that:- Chapter Note 1(a) of Chapter 94 which reads thus “pneumatic or water mattresses, pillows or cushions, of Chapter 39, 40 or 63.” Apparently, cushions which fall under Chapter 39 are excluded from Chapter 94 - no fault with the impugned order classifying the produce under Chapter 39 - penalty is sought to be imposed not only on the firm but also on the partners which is clearly not permissible – pre deposit waived /stayed partly.
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2012 (8) TMI 656
Whether indicating the name of the manufacturer on the packaging of the product would amount to affixing a brand name or not - SSI exemption – Held that:- In respect of the packaged goods, there are statutory requirements that the manufacturer’s or packer’s name and address should be indicated on the packages of the goods under the standards of Weights & Measures Act, 1976 and the rules made thereunder. Indicating the names and address of the manufacturer on the packages cannot be construed as affixing the brand name - appellant is entitled for the benefit of exemption
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2012 (8) TMI 651
Cenvat credit – Held that:- Service tax is paid on transportation charges fell within the phrase “clearance of final products from the place of removal” and therefore, the assessee was entitled to Cenvat credit - in favour of the assessee
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