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Central Excise - Case Laws
Showing 21 to 40 of 388 Records
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2013 (12) TMI 1514
Restoration of appeal - sale or auction of property - pre-deposit - compliance - this is the second set of applications filed by the applicant for restoration of appeals. In the first set of applications, the very same plea was taken before the Bench and, after considering the very same arguments, which are made today, the Bench was pleased to dismiss the said applications due to loss of considerable time in moving of applications for restoration of appeals, even if the Revenue authorities have attached the property and held that it would not satisfy the condition of stay order passed by the Bench.
Held that: - In the current set of applications which are moved and prosecuted, we find there is no change in situation which warrants our further consideration. Added to that, it is also informed by the learned departmental representative that Revenue authorities have already appointed an auctioneer for auctioning the said property - no merit found for restoration of appeal - application dismissed - decided against assessee.
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2013 (12) TMI 1511
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... ... ..... be depending upon M/s Patil Computers for his employment and not Central Excise department. Therefore, I am not convinced of the correctness of these claims. However, in my opinion cross-examination of these two witnesses should have been allowed since the actual evidence for coming to the conclusion that the delivery in accordance with the provisions of Central Excise Act 1944 on the appellant on 4.7.2008 is the Mahazar. Under these circumstances, I feel that an opportunity to cross-examine should have been given to the appellant in the interest of justice. Since after all the only conclusion that would emerge in case the appellant succeeds would be that the appeal is in time and appellant would not get any other benefit. In the result, the impugned order is set aside and matter is remanded to the Commissioner (Appeals) who shall allow cross-examination of the witnesses and proceed to decide the matter afresh after giving opportunity to the appellant to present their case.
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2013 (12) TMI 1510
Duty demand - Seizure of goods - Penalty u/s 11AC - clandestine removal of goods - Bar of limitation.
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2013 (12) TMI 1509
MODVAT credit - job work - N/N. 214/86-C.E. - Whether the CESTAT is right in giving relief of ₹ 8,32,966/- to the assessees without considering the procedure laid down in the Notification No. 214/86-C.E. (as amended), dated 25-3-1986? - Held that: - reliance placed in the decision of the case of Commissioner of Central Excise, Chandigarh v. Ranbaxy Labs. Ltd. [2006 (7) TMI 216 - PUNJAB AND HARYANA HIGH COURT], where it was held that the benefit availed by the assessee, of Cenvat credit of the duty paid on the input by the sister concern was not liable to be denied to the assessee on the strength of the N/N. 214/86-C.E., dated 25-3-1986.
Whether the CESTAT is right in holding that Modvat credit availed by an assessee was exactly equivalent to the amount of Excise duty paid by the input manufacturer without availing exemption, the consequence being revenue neutral and hence there could be no demand for reversal of the credit? - Held that: - reliance was placed in the case of Commissioner of Central Excise & Customs, Vadodara v. Narmada Chematur Pharmaceuticals Ltd. [2004 (12) TMI 93 - SUPREME COURT OF INDIA], where it was held that what had been availed of by the assessee by way of Modvat credit, was in respect of the duty paid by the input-manufacturer not availing the exemption, and the fact being the revenue neutral, the question of reversing the claim made by the assessee did not arise.
Appeal dismissed - decided against Revenue.
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2013 (12) TMI 1508
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... ... ..... . Considering the peculiar facts and circumstances of the case and with the consent of learned Counsel for the parties, we direct the Respondent No. 3 to furnish relevant documents mentioned in the application dated 26-9-2013 to the petitioner, expeditiously, say, within a week from the date of receipt a certified copy of this order. 8. It is also provided that in case the petitioner prefers an appeal within fifteen days from the date of the furnishing the said documents along with an application for condonation of delay as well as application for interim relief, the appellate authority shall consider and condone the delay in filing the appeal looking to the peculiar circumstances of the case and decide it on merit. It is also provided that the appellate authority shall make earnest endeavour in deciding the application for interim relief, expeditiously, say, within four weeks from the date of filing the appeal. 9. The writ petition stands disposed of finally.
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2013 (12) TMI 1507
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... ... ..... We find that the issue involved in this case lies in narrow compass. It is undisputed that the appellant is clearing E.T. sludge from the factory premises on commercial invoices. It is the claim of the assessee that the E.T. sludge is arising as a waste after the manufacturing process of paper. We find strong force in the argument that it may be covered under the benefit of Notification No. 76/86-C.E., dated 10-2-1986 as amended from time to time. On perusal of the said notification, we find that the said notification exempts “Sludge” obtained in effluent treatment plant belonging to an industrial unit. Prima facie, we find that the appellant has made out a case for waiver of amounts involved as the item sought to be cleared by them is mentioned as “E.T. sludge”. 4. Accordingly, the application for waiver of pre-deposit of amounts involved is allowed and recovery thereof stayed till the disposal of appeal. (Dictated and pronounced in Court)
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2013 (12) TMI 1506
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... ... ..... uired to discharge the Central Excise duty on such Oxygen consumed as provided under Notification No. 67/95-C.E. 2. Heard both sides and perused the records. 3. On perusal of the records, we find that the appellant is extracting the Oxygen from the ambient air and using the same in a continuous process without storing the same for manufacturing of paper pulp. In our view, the separation/segregation of Oxygen and Nitrogen is a continuous process, prima facie, seems to be a non-marketable product as the activity of segregation, as explained by the appellant before the lower authorities in detail, there is no compression of Oxygen or storing the same. 4. In view of the above, we find that the appellant has made out a prima facie case for waiver of pre-deposit of amounts involved. Accordingly, the applications filed for waiver of pre-deposit of amounts involved are allowed and recovery thereof stayed till the disposal of appeals. (Dictated and pronounced in Court)
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2013 (12) TMI 1504
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... ... ..... antial question of law involved in this matter and the matter should be admitted. 6. We are of the view that the aforesaid rule cannot be made applicable to frustrate the original order altogether meaning thereby if the prayer made in this application is allowed on the aforesaid rule then earlier order has to be recalled in its entirety and the learned Tribunal has correctly held that this would amount to an exercise of review jurisdiction. According to us, the aforesaid rule cannot be made applicable to upset the fact finding of a previous judgment and order, which was not challenged in accordance with law. This would be applicable in a case where there has been mistake apparent on the face of the record and also error in calculation. Therefore, we do not find that the aforesaid suggested questions of law appear to be any substantial questions of law and the rule is very clear that no further interpretation is required. 7. Hence, the appeal is dismissed. No costs.
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2013 (12) TMI 1503
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... ... ..... ioner and but subsequently was set aside partly by the Commissioner (Appeals). The department in these proceedings seeks imposition of penalty on the respondent under Rule 25, as the Assistant Commissioner while confirming the interest demand had refrained from imposing penalty. In my view, duty had been paid by the respondent voluntarily on their ascertainment under Section 11A(2B) and the dispute was only about interest on this duty. Penalty is not imposable under any clause of Rule 25(1) of the Central Excise Rules for non-payment of interest on duty paid under Section 11A(2B), as this situation is neither covered by clause (a), (b) and (c) of Rule 25(1) nor by clause (d) of this sub-rule as this is not a case of contravention of the provisions of the Act or the rules made thereunder with intent to evade the payment of duty. Thus even on merits also, the Revenue has no case. In view of the above, Revenue’s appeal is dismissed. (Dictated and pronounced in open Court)
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2013 (12) TMI 1502
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... ... ..... t credit. The items which are part of the pipes would such be treated as capital goods as pipes are specifically covered by the definition of capital goods. Some steel items are claimed to have been used for fabrication of storage tank. In this regard if the steel items have been used for fabrication of a storage tank which is immovable, the steel item used would not be eligible for Cenvat credit but the steel items used for fabrication of storage tank which is movable, would eligible for Cenvat credit. However the impugned order does not discuss the use of each items and the Cenvat credit in respect of various items has been disallowed only on the ground that the same do not fall in the chapter headings mentioned in the definition of capital goods. In view of this the impugned order is set aside and the matter is remanded to the original adjudicating authority for de novo adjudication, keeping in view the observations in this order. (Dictated & pronounced in open Court)
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2013 (12) TMI 1500
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... ... ..... four cases and in respect of three other cases, the Department filed appeal; in respect of one such case and in the appeal preferred by the Department before this Court in C.M.A. No. 111 of 2008 (The Commissioner of Central Excise, Pondicherry Commissionerate, No. 1, Goubert Avenue, Beach Road, Pondicherry-605 001), a Division Bench of this Court, by order dated 25-1-2008 dismissed the appeal. Hence, following the said decision, the Civil Miscellaneous Appeal stands dismissed. No costs.
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2013 (12) TMI 1499
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... ... ..... ker also. In such a situation, the job worker can be expected to get a declaration from the principal and produce it before the department and department can definitely go into and verify the correctness of such a declaration. In this case, the department is simply making a statement that these items are includible and the reasons for inclusion also not explained and further it is simply stated that job worker should have given the price at which CIL sells the goods at the depot which is basically a question of verification of facts. Prima facie we do not find that the department can expect a job worker to make such investigation and produce results to the department. 6. In such a situation, at this stage, we consider it appropriate that we have to follow a precedent decision of this Tribunal relied upon by the learned counsel and grant waiver of pre-deposit and stay against recovery during the pendency of appeals. We do so. (Order dictated and pronounced in open Court)
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2013 (12) TMI 1498
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... ... ..... uo;Rabipur vaccines’. It is his submission that when there are two views possible at the lower level, appellants get unconditional waiver is the convention. 4. Or perusal of the records, we find that there is no dispute as to the fact that appellant is clearing a combi-pack of Rabipur vaccine and the distilled water is engulfed in the same pack which is to be prepared before giving injection to a patient. The classification of the product in the combination pack would get covered under Chapter 30 is the finding of the adjudicating authority, which in our prima facie view, seems to be correct. 5. Since there is concurrent findings in one of the appellant’s competitor’s case, we find appellant has made out a case for the waiver of pre-deposit of the amounts involved. Accordingly, application for the waiver of pre-deposit of the amounts involved is allowed and recovery thereof stayed till the disposal of appeal. (Dictated and pronounced in the Court)
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2013 (12) TMI 1493
Shortage of goods - total shortage of 216.447 MT of M.S. Bars and Angles (final products) from the recorded balance was noticed - shortage stand detected on the basis of average method - demand of duty with penalty - Held that: - In the absence of any corroborative evidences to prove clandestine removal, the fact of such shortages computed on the basis of average method cannot be held to be relatable to clandestine activities. Further, there is no admission in the statement of the partner as regards clandestine removal.
It is well settled law that clandestine activities are required to be proved by sufficient and positive evidences. The same cannot be upheld on the basis of doubts - appeal rejected - decided against Revenue.
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2013 (12) TMI 1492
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... ... ..... de by the department is in consonance with the provision of the said Section. Since the claim of interest made by the department is based upon the provision of law mentioned supra, it is needless to say that the order passed by the Appellate Tribunal with regard to interest is not legally and factually sustainable. Under the said circumstances the order passed by the Appellate Tribunal in Final Order No. 1165/2005, dated 11-7-2005 is liable to be set aside and the substantial question of law formulated in the present Civil Miscellaneous Appeal is decided in favour of the appellant. 13. In fine, this Civil Miscellaneous Appeal is allowed without costs and Final Order No. 1165/2005, dated 11-7-2005 passed by the Customs, Excise and Service Tax Appellate Tribunal, Bangalore in Appeal No. E/1057/2004 is set aside and the appellant is entitled to levy appropriate rate of interest in respect of Central Excise duty for the period started from September, 2001 to February, 2002.
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2013 (12) TMI 1491
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... ... ..... Shahnawaz Khan was authorized signatory of M/s. Jai Ganpati Metals, Mathura. Therefore, I hold that the adjudicating authority has correctly deducted a sum of ₹ 1,50,000/- from the refund sanctioned.” Hence the present appeal. 4. After hearing both the sides, I find that the lower authorities have appropriated an amount of ₹ 1 lakh towards penalty imposed upon one of their employee. The penalty imposed upon the employee was personal penalty and has to be recovered from the employee. There is no justification for deduction of said penalty from the refund claim of appellant. As such, I hold that the adjustment of ₹ 1 lakh, towards penalty imposed upon the employee is not proper. The appellant have not contested the adjustment of ₹ 50,000/- (Fifty Thousand) towards duty confirmed against them. Accordingly, I direct the lower authority to refund ₹ 1 Lakh to the appellant. Appeal is disposed of in above terms. (Pronounce in the open Court)
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2013 (12) TMI 1490
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... ... ..... ypsum Plaster. Gypsum Plaster is manufactured by synthetic or by chemical process. In view of this prima facie we find that the applicants have not made out a case that the product in question is classifiable under Chapter 25 of the Tariff. 10. In respect of time-bar we find that the applicants never disclosed to the Revenue that this Phosphogypsum is manufactured by synthetic or chemical process. Therefore, in these circumstances, prima facie we find that the applicants have not made out a case for total waiver of the dues. However, taking into consideration the fact regarding credit of duty in respect of Phosphogypsum, cum-duty and the amount already deposited, the applicants are directed to deposit a sum of Rs. one crore within a period of eight weeks and report compliance on 19-2-2013. On deposit of the above mentioned amount, pre-deposit of the balance of duty, interest and penalties is waived and recovery thereof stayed for hearing the appeals. (Dictated in Court)
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2013 (12) TMI 1489
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... ... ..... y and also raised several other issues for consideration of the Tribunal. Therefore, the learned counsel appearing for the petitioner prayed this Court to permit the petitioners to raise all the grounds which are canvassed in these writ petitions before the Tribunal. Considering the said submission, the writ petitions are disposed of given liberty to the petitioners to raise all the points which are raised in these writ petitions before the Tribunal for its consideration on merits, except the legal issue which has been concluded in C.M.A. No. 861 of 2007, dated 5-12-2013. Consequently, connected miscellaneous petitions are closed.
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2013 (12) TMI 1487
Penalty u/s 11AC - difference between the amount of Cenvat credit details shown in the return filed by the assessee with the department and the Cenvat credit register maintained by the assessee - Held that:- There was mistake in data entry and errors occurred. The appellant as submitted seems to have paid the same amount twice - Even if the credit had been taken wrongly, apparently it was because of some errors in data entry and not with an intention. That being the position, penalty imposed under Section 11AC cannot be sustained - appeal allowed.
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2013 (12) TMI 1486
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... ... ..... al in a series of judgments. We find from a plain reading of the definition of ‘capital goods’ under Rule 2(a) and ‘inputs’ under Rule 2(k) of the Central Excise Rules, 1944, that all goods could be treated as ‘inputs’, but the definition of ‘capital goods’ is restricted to the items specified therein, and its usage. So, whether cathode and anode would fall under the scope of ‘capital goods’ as defined, or not, is a debatable one. Prima facie, keeping in mind the precedent decisions and also in view of the fact that the Applicant are eligible to the Cenvat credit on the cathode and anode, we are of the opinion that the Applicant are able to make out a strong prima facie case on merits for total waiver of pre-deposit of the dues adjudged. Accordingly, pre-deposit of all dues adjudged is waived and its recovery stayed during the pendency of the Appeal. Stay Petition allowed. (Dictated and pronounced in the open Court)
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