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Central Excise - Case Laws
Showing 381 to 388 of 388 Records
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2013 (12) TMI 28
Classification of copper bronze castings - Levy of duty – Notification No.8/96 - Whether the copper bronze castings, as the same come out of the mould, are classifiable under Central Excise Tariff sub-heading 7419.91 – Held that:- The castings before being used as parts, are subjected to the process of grinding, fettling, proof machining and without these processes, the same are not usable as parts of submersible pumps – Following Shivaji Works Ltd. vs. CCE, Aurangabad [1993 (5) TMI 98 - CEGAT, NEW DELHI] - the castings, in question, would be correctly classifiable under heading 7419.91 and not as part of submersible pumps under sub-heading 8413.99, as there is no evidence produced by the appellant that the castings as such without being subjected to any process are usable as parts – as regards the marketability there are a number of internet websites offering copper bronze castings, for sale which show that the market for this product exists – there was no infirmity in the order – Decided against Assessee.
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2013 (12) TMI 27
Setting aside of Refund claim of Pre-deposit amount - Assessee contended that the Assistant Commissioner is statutorily empowered to consider process and grant refund u/s 11B of the Central Excise Act, 1944 – Held that:- Any deposit made during investigation or after adjudication has to be refunded to the assessee when the OIO is set aside and no quantification has been done by passing a suitable order as directed by CESTAT in its order dt. 24/02/2011 – Relying upon Voltas Limited Vs. UOI [1998 (11) TMI 137 - HIGH COURT OF DELHI] - the demand was set aside by CESTAT vide order dt. 24/02/2011 and there is no sign of quantification for a period of over 2 years – AC was right in sanctioning the refund of remaining amount of deposit made by the appellant after making suitable adjustments – observations of the OIA dt. 22/02/2013 passed by Commr (A) set aside - Decided in favour of Assessee.
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2013 (12) TMI 26
Bar of Limitation - Denial of Cenvat credit - Whether the appellant is entitled to avail credit of duty paid on the free supplied blades packed along with the razors manufactured by them, by treating the same as inputs – Held that:- The show cause notice was issued on 10.12.2003 for the period October 2001 to July 2002 - the entire period is beyond the normal period of limitation - The appellant have taken a categorical stand that the entire facts were in the knowledge of the Revenue inasmuch as number of quarries were raised by them, which stand replied to by the appellant.
There being divergent views and the issue being a complex and technical in nature, the appellant cannot be held guilty of suppression or malafide with an intent to evade duty - The lower authority have not referred to or relied upon any evidence indicating any positive suppression or misstatement on the part of the appellant - there is correspondence on the above subject, thus indicating knowledge on the parts the Revenue, in which case the longer period of limitation cannot be invoked – order set aside – Decided in favouro of assessee.
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2013 (12) TMI 25
Notification no. 39/2007 – Calculation of Duty on Quarterly basis - Waiver of pre-deposit of Penalty u/s 11AC of CE Act – Held hat:- If the capital goods on which credit has been taken are removed after being used, the manufacturer shall pay an amount equal to CENVAT credit taken on the capital goods reduced by 2.5% on each quarter of the year or part thereof from the date of taking of the CENVAT credit - The appellants while clearing the capital goods calculated duty on quarterly basis - it is not a case of intention to evade payment of duty - thus the penalty imposed u/s 11AC of the Central Excise Act set aside – Decided in favour of Assessee.
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2013 (12) TMI 24
Interest on Excess cenvat credit – Raw materials used are exempted - Whether the assessee is liable to interest in respect of excess availed credit – Held that:- The issue has attained finality and the Assistant Commissioner was bound by the direction contained in the said order of the Tribunal in spite of the reversal of the decision of the IND-SWIFT LABORATORIES LTD. Versus UNION OF INDIA [2009 (7) TMI 98 - PUNJAB & HARYANA HIGH COURT ]- the Revenue should have challenged the Tribunal’s order before the appropriate forum by way of filing appeal so as to keep the matter alive - Revenue having not done so and having allowed the proceeding to arrive at dead end and the Tribunal’s order to attain finality, they are not now entitled to avail the benefit of declaration of law by the Hon’ble Supreme Court subsequent to the conclusion of the proceeding – There is no infirmity in the order - Decided against Revenue.
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2013 (12) TMI 23
Refund claim - Duty under protest paid - Cost of third party test – Transaction value - Whether the cost of third party test got done at the instance of customer is to be included in the value or not - Held that:- As per Section 4(3)(d) ‘transaction value’ means the price actually paid or payable for the goods, when sold, and includes in addition to the amount charged as price, any amount that the buyer is liable to pay to, or on behalf of, the assessee, by reason of, or in connection with the sale, whether payable at the time of the sale or at any other time, including, but not limited to, any amount charged for, or to make provision for, advertising or publicity, marketing and selling organization expenses, storage, outward handling, servicing, warranty, commission or any other matter; but does not include the amount of duty of excise, sales tax and other taxes, if any, actually paid or actually payable on such goods - the cost of ESS test whether it is paid to a third party or paid to the seller himself is includable.
Extended period of limitation - The extended period could have been invoked in respect of the appellant - Once the duty liability is confirmed as payable, if extended period is invoked even penalty becomes payable - In this case only the refund claim has been rejected and the appeal is only against the rejection of refund claim - the testing conducted is a condition of sale and therefore, the cost of such testing is includable in the assessable value – thus the refund claim has been rightly rejected – Decided against Assessee.
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2013 (12) TMI 22
Clandestine clearance of paper and paper board – Show cause notice issued for confiscation of the seized goods – Principles of natural justice - Held that:- The Commissioner (Appeals) modified the Order of the Adjudicating Authority to the extent that the Commissioner (Appeals) allowed the release of the absolutely confiscated goods on payment of redemption fine, confirmed the demand and reduced the penalty - To this extent, the findings of the Commissioner (Appeals) and two separate Orders passed by him, are contradictory to each other - the Commissioner (Appeals) while disposing the Departmental Appeal had not issued any show cause notice to the assessee and they were also not heard by him and therefore, the Orders-in-Appeal were passed without observing the principles of natural justice – thus, the Orders passed by the Commissioner (Appeals) are bad in law – the matter remitted back to the Commissioner (Appeals) to decide the case afresh - Decided in favour of Assessee.
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2013 (12) TMI 21
Eligibility for SSI Exemption under Notification No. 08/2003 - Value of clearances not beyond the limit - Clearance of refined oils and soap – Duty under Protest paid – Held that:- Whether there was any provision for payment under protest under law - No specific provision was brought to notice - where the payment under protest finds its place is in the Explanation to Section 11B(1) of Central Excise Act, 1944 - This proviso provides that the limitation of one year was not applicable where any duty has been paid under protest. This is contrary to the position existing under erstwhile Central Excise Rules, 1944. Earlier, there was a specific rule for payment under protest under Rule 233 of Central Excise Rules and this rule besides providing for payment under protest also gave the procedure to be followed briefly. However no such provisions exist under the law and either side could not bring any such provision to our notice.
Whether a show-cause notice should have been issued for appropriation of the amount paid by the appellant under protest – Held that:- Once the appellant paid the amount and Department did not issue notice, the matter should have ended there - The appellants after making payment, wanted to convert it into a dispute and have asked the Superintendent concerned to issue a show-cause notice to them - The law does not contemplate this - the proceedings initiated by the Department were not required at all for appropriation and vacating the protest - the payment has attained finality after one year, appeal has no merit.
When there is no contest of the demand or duty liability on merits and they are not in a position to say what documents are required by them or which provision of notification they do not understand, it is difficult to find fault with the procedure followed by the adjudicating authority who has given an opportunity of personal hearing and has passed an order outlining the provisions of notifications according to which appellant is liable to pay and hence has held that the payment made by them is proper and correct.
Department has explained the notification provisions, informed the assessee in spite of the fact that the assessee did not explain why they were having an impression that they were not liable to pay and did give an importunity by giving personal hearing before appropriation to explain their case as to why they are eligible for exemption - The end is justice and show-cause notice is a means to that end – Decided against Assessee.
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