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Central Excise - Case Laws
Showing 41 to 60 of 388 Records
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2013 (12) TMI 1479
Denial of CENVAT Credit - Held that:- Tribunal after analyzing the fact found that the issue involved herein is squarely covered by the judgment of the Gujarat High Court in the case of CCE & C, Vadodhara-I v. Chloritech Industries [2008 (7) TMI 278 - GUJARAT HIGH COURT]. It is not the case before us that the aforesaid judgment of the Gujarat High Court has no application in this case. The only point argued by the learned Counsel for the appellant that the Hon’ble Supreme Court has decided otherwise. - nothing is to be decided in this appeal. - Decided against Revenue.
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2013 (12) TMI 1478
Validity of Tribunal's order - omission of Section 3A of the Central Excise Act, 1944 with effect from 11-5-2001 and also the omission of Rules 96ZO and 96ZP of the Central Excise Rules, 1944, with effect from 1-3-2001 - Held that:- provisions of Section 38A of the Central Excise Act, 1944, inserted by Section 131 of the Finance Act, 2001, are applicable in respect of the obligations and liabilities incurred under Rules 96ZO and 96ZP before they were omitted by Rule 7 of the Central Excise (Third Amendment) Rules, 2001, notwithstanding the omission of Section 3A with effect from 11-5-2001 by the Finance Act. - there is no challenge to the validity of the Finance (No. 2) Act, 2009 (Act No. 33 of 2009) the relief sought for in the Civil Miscellaneous Appeal cannot be granted. - Decided against assessee.
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2013 (12) TMI 1472
Validity of Ttribunal's order - Whether the first respondent has violated principles of natural justice in not serving the notice of hearing in terms of Rule 18 of Customs Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 - Held that:- Since the appellant has not made its appearance in [2015 (2) TMI 749 - CESTAT CHENNAI], the Tribunal has erroneously stated that it has considered the rival submissions. Therefore, it is quite clear that for giving sufficient opportunity to the appellant, the impugned Final Order passed by the Customs, Excise and Service Tax Appellate Tribunal, Chennai, is liable to be set aside and the matter is liable to be remitted to the file of the Appellate Tribunal. - Decided in favour of assessee.
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2013 (12) TMI 1470
Denial of MODVAT Credit - Goods destroyed in fire accident - Held that:- issue involved in the present appeal is purely a question of fact. As the appellant miserably failed to establish their case factually before the Original Authority or the First Appellate Authority or the Customs, Excise and Service Tax Appellate Tribunal, cannot now be permitted to canvass the question of fact which has become final. Hence, no question of law arises for consideration and the appeal fails. - Decided against assessee.
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2013 (12) TMI 1469
Waiver of pre deposit - Denial of CENVAT Credit - event management service - Held that:- While there is no dispute that the function had been organized at a temple and the finding of the Commissioner (Appeals) in the impugned order is that the function might have been attended by the dealers and retailers in which the CMD and higher officers might have been interacted with them, the Cenvat credit is sought to be denied only on the ground that it is a religious function because the function has been organized in the temple. I am of the prima facie view that ground for denying Cenvat credit is not correct, as just because the function was organized at the temple, it would not become a religious function when there is no evidence that it was only for their employees and no dealers or retailers had been invited. - Stay granted.
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2013 (12) TMI 1468
Benefit of Exemption Notification No.6/2006 – Duty free Naphtha used for the purpose other than manufacture of fertilizers – Maintainability of appeal - Section 35L - Held that:- this is not a fit case where court should entertain appeals under Section 35L of the Act - appellant, seeks withdrawal of the appeals to challenge the impugned order under Section 35G of the Act before the High Court - Appeal withdrawn.
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2013 (12) TMI 1467
Benefit of exemption Notification 8/97 - whether the appellant is entitled to claim exemption under Notification No. 8/97 or he is bound to pay Central Excise duty equallent to customs duty as per Notification No. 13/98, dated 2-6-1998 - Held that:- no mention has been made in the common order with regard to the period mentioned in CMA No. 2 of 2011. Since no finding has been given in the common order with regard to the period mentioned CMA No. 2 of 2011, it is needless to say that the final order passed by the Appellate Tribunal is liable to be set aside and the matter is liable to be remitted to its file. Since the final order in question does not mention anything about the period mentioned in CMA No. 2 of 2011, this Court is of the view that question of jurisdiction raised on the side of the second respondent cannot be decided. Further, since the matter is liable to be remitted to the file of the Appellate Tribunal, the common substantial question of law settled in these proceedings need not be decided. - Decided in favour of assessee.
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2013 (12) TMI 1461
Demand of differential duty - Clearance of goods to DTA Unit over and above 50% of DTA entitlement under Notification No. 23/2003-C.E., dated 31-3-2003 - Non payment of 4% additional duty - whether the applicant is eligible for the benefit of Notification No. 23/2003-C.E - Held that:- exemption benefit would be extended to the goods manufactured in EOU cleared into DTA in accordance with the provisions of Foreign Trade Policy. Then, it has to fulfil the particular conditions as specified in the Table appended thereto. EOU is permitted to clear the goods into DTA as per provisions of Paragraph 6.8 of Foreign Trade Policy.
Concessional rate of duty under would be restricted as per Condition 2, to the goods cleared into DTA as per provisions of sub-paragraphs (a), (d), (e) and (g) of Paragraph 6.8 of Foreign Trade Policy, which are permitted to sell into DTA in a particular limit. On the other hand, the concessional rate of duty of serial No. (1) of the Table of the said notification would apply to the goods cleared into DTA in accordance with the provisions of Foreign Trade Policy and subject to fulfilment of condition No. 1 insofar as the goods cleared into DTA are not exempted by the State Government from payment of sales tax or value added tax. Sub-paragraph (h) of Paragraph 6.8 permitted to sell into DTA upon intimation to Development Commissioner provided they have achieved positive NFE.
The purpose of Notification No. 23/2003-C.E. is to extend the benefit of concessional rate of duty to the goods manufactured in an EOU and cleared into DTA in accordance with the provisions of Policy. There is no dispute that the applicant cleared the goods into DTA in accordance with the provisions of Paragraph 6.8(h) of Policy. It is not the case of the Department that the applicant had violated Condition No. 1 as stipulated in Serial No. 1 of the Table of the Notification. So, we do not find any reason to deny the benefit of concessional rate of duty under Sl. No. 1 of the Table of the Notification as claimed by the applicant. - Stay granted.
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2013 (12) TMI 1460
Undervaluation of goods - Whether penalty can be imposed or not under Rule 173Q of the Central Excise Rules, 1944 when the assessees accepted the violations mentioned in the show cause notice and paid the differential duty amount - Held that:- Even though a lengthy show cause notice has been given by the appellant on 28-6-1996, no specific provision is mentioned which enables the Department to get penalty. But, on the other hand, it has been simply stated Rule 173Q of the Central Excise Rules, 1944 and it is not at all sufficient for coming to a conclusion that the Department has quoted opt provision of law so as to sustain the claim of penalty. - unless a specific provision of law is quoted in the show cause notice, claim of penalty is not legally maintainable. - Appellate Tribunal, after considering the bereft of particulars in show cause notice with regard to claim of penalty, has rightly rejected the claim of penalty made on the side of the Department and in view of the foregoing enunciation of both the legal and factual aspects, this Court has not found any acceptable force in the contention put forth on the side of the appellant, whereas the contention put forth on the side of the respondent is really having subsisting force and the substantial question of law raised in the present Civil Miscellaneous Appeal is not having substance - Decided against Revenue.
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2013 (12) TMI 1453
Valuation of goods - Interest under Sec. 11AB and penalty under Sec. 11AC - whether the element of cost incurred for developing tools and moulds for manufacturing components and further used in the manufacture of seats manufactured by the appellant, is required to be added to the assessable value of seats and cleared by the appellant to M/s. GMI - Held that:- M/s. GMI has given a contract to the appellant to supply him a manufactured product and for that purpose an amount is given for developing the tools/moulds required for parts/components which are used in the manufacture of seats supplied to M/s. GMI. It is irrelevant as to how appellant gets the parts/components developed and manufactured but what is appropriately relevant is that such amount received is a consideration with respect to the finished manufactured seats required by M/s. GMI. Accordingly, it is required to be held that appropriate element of cost, enhancing the value of the component/parts, will also required to be added to the assessable value of the seats. - Decided in the case of M/s. Lear Automotive India Pvt. Ltd. v. CCE, Nashik [2012 (11) TMI 294 - CESTAT, MUMBAI] followed. - Decided against assessee.
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2013 (12) TMI 1452
Validity of order passed by the Tribunal - Held that:- It appears that while disposing of the appeal preferred by the appellant against the OIO [2000 (11) TMI 553 - CEGAT, NEW DELHI] as such the learned Appellate Tribunal did not quash and set aside the OIO passed by the Assistant Commissioner. However, disposed of the said appeal by observing that “the matter could be adjudicated by the competent adjudicating authority”. That with the aforesaid observations the appeal came to be disposed of. Considering the above, it cannot be said that there was no specific order of remand for de novo adjudication. The aforesaid observation suggests that the Appellate Tribunal was of the opinion that the matter is to be adjudicated by the competent adjudicating authority - no reason to interfere with the impugned judgment and order passed by the learned Appellate Tribunal [majority decision]. No error has been committed by the learned Appellate Tribunal which calls for interference of this Court. No question of law much less substantial question of law arises in the present appeal. - Decided against assesee.
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2013 (12) TMI 1399
Waiver of Pre-deposit – Held that:- Following Bharati Tele Ventures Limited Vs. Commissioner of Central Excise, Pune-III [2010 (11) TMI 77 - BOMBAY HIGH COURT] - Pre-deposits waived till the disposal and the matter needs to be decided on merit – Stay granted.
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2013 (12) TMI 1398
Goods detained because of non-payment of duty - Manner of payment of duty under Rule 8(3A) - Whether the petitioner was correct in making use of the Cenvat credit for the purpose of discharging the duty liability – Held that:- There is no question of invoking the Cenvat Credit Rules, 2004 in its entirety except for understanding the meaning of the term ‘duty’ or ‘duty of excise’ - the rigour of Section 8(3A) operates notwithstanding anything contained in sub-rule (1) and (4) of Rule 3 of Cenvat Credit Rules - Sub-rule 4(b) of Cenvat Credit Rules permits utilisation of Cenvat credit for payment of duty of excise on any final product - This provision makes the position very clear that Cenvat credit cannot be used as a matter of right for payment of duty of excise, in case the assessee defaults in payment of duty before the cut off period under Rule 8(3A) of Central Excise Rules, 2002.
The purpose of explanation that the expression ‘duty’ or ‘duty of excise’ shall also include the amount payable in terms of the Cenvat Credit Rules, 2004, would not amount to a permission for utilising the Cenvat credit for paying the excise duty - Rule 8(3A) is very specific when it provided that the entire duty should be paid without utilising the Cenvat credit - There is no question of utilising the explanation for the purpose of using the Cenvat credit for paying the outstanding duty amount – Thus, the assessee is liable to pay the excise duty in accordance with the Central Excise Rules, 2002 with interest for the belated period and there is no provision for utilising the Cenvat credit for such belated payment - The petitioner is liable to pay the entire duty amount with interest without utilising the Cenvat credit - decided against Petitioner.
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2013 (12) TMI 1397
Availment of benefit of Cenvat credit - Inputs/capital goods used for manufacture and clearance of dutiable and exempted finished goods – Held that:- The remand had been made to the Tribunal and in the order of remand, it was also directed to consider the provision of section 11AC and the Tribunal had specifically noted that none of the two authorities below had availed any option to the assessee to pay duty demand with interest and penalty of 25% of the duty within 30 days from the date of adjudication - the Tribunal in its order maintained that the case of the assessee is squarely covered by the explanation to Section 11AC.
The duty determined under Section 11AC (2) was subsequent to the year 2000 - the case would be covered by the explanation to Section 11AC of the Central Excise Act - When no option was given by any of the adjudicating authorities after determination for payment of duty, interest and penalty of 25% of the duty – Decided against Revenue.
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2013 (12) TMI 1396
Extension of stay – Held that:- ITAT cannot extend stay orders u/s 35C (2A) or Section 129B of the Central Excise Act, 1944 and Customs Act, 1962 – ITAT cannot extend the stay orders which have been granted by the Tribunal due to the specific provisions of Section 254 (2A) of the Income Tax Act - Following JP. Transformers Versus CCE, Kanpur [2013 (8) TMI 709 - CESTAT NEW DELHI] - Tribunal has got an authority to extend the stay orders which have been passed – thus, extension for stay granted – decided in favour of assessee.
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2013 (12) TMI 1395
Clandestine clearance of goods – PCC poles cleared without paying the duty – Held that:- The goods which require testing and get consumed during such testing cannot be held to be marketable and hence excisable and duty not required to be paid on the said poles – Relying upon Collector of Central Excise v. M/s. Sudershan Beopar Co. Ltd [1992 (8) TMI 190 - CEGAT, NEW DELHI] - testing of PCC Poles is essential for making the goods marketable and without such testing the goods cannot be sold - no duty is required to be paid in respect of such Poles which get utilized in the factory for testing purposes - quality control test in respect of cement concrete Poles, being a mandatory requirement before the goods produced could be considered as fully manufactured are not required to discharge duty liability when such cement concrete Poles get destroyed.
Failure to maintain records – Held that:- The appellant have duly entered such PCC Poles in their daily stock account - If there was any mala fide intention on the part of the appellant to clear the said poles without payment of duty, the same would not have been entered by them in the statutory records - no duty liability can be fastened on the appellants in respect of such damage/broken poles - onus to prove the clandestine clearance is on the Revenue, which is required to be discharged by production of sufficient evidence – the entire case have been made out on the basis of non-production of records in respect of broken poles – Decided in favour of Assessee.
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2013 (12) TMI 1394
Classification of Goods - Chyawanprash Awaletha to be classified under Chapter Sub- Heading No.3003.30 of CETA, 1985 as Ayurvedic medicaments OR under Chapter Heading 2107.91 or 2107.90 of CETA,1985 as other edible preparations - Waiver of Pre-deposit – Penalty under Rule 173Q of erstwhile Central Excise Rules, 1944 – Held that:- Prima facie, there was force in the contention in the argument that the same products of the assessee manufactured at other locations have been assessed as Ayurvedic medicaments by other Commissionerates - uniformity and certainty is an important cannon of Taxation - same goods be classified uniformly irrespective of its place of manufacture – Thus, the applicant could able to make out a prima facie case for total waiver of amount – Pre-deposits waived till the disposal – Stay granted.
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2013 (12) TMI 1393
Availment of Cenvat credit – Goods used in the factory as inputs or capital goods – Waiver of Pre-deposit – Held that:- The period involved in the present case is from April, 2005 to June, 2009 and major portion of the demand has been raised beyond the normal period of limitation - The Tribunal has been taking a consistent view by allowing the stay petition un-conditionally in those cases, where cenvat credit is availed on the angles, channels, beams etc. used in the factory as capital goods or in the manufacture of capital goods – Following Vandana Global Ltd. Vs. CC Ex., Raipur [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)]- Pre-deposit directed for the normal period – Assessee is directed to deposit Rupees Seven lakhs as pre-deposit – upon such submission rest of the duty to be stayed till the disposal – Partial stay granted.
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2013 (12) TMI 1392
Penalty u/s 11AC of Central Excise Act r.w. Rule 15 of the Cenvat Credit Rules and Rule 25 of the Central Excise Rules – Reversal under Rule 3(5) of Cenvat Credit Rules, 2004 - Held that:-Commissioner has imposed penalty on the ground simplicitor that there has been procedural and technical violation of the Rules, even though he has held that there was no intention on the part of the assessee to do so – the detection of mistake was by the assessee himself - penal provisions are relatable to mala fide intention of the assessee, who is being penalized - As such it has to be first seen as to whether the provisions of Section 11AC are invocable or not – Following Union of India v. Rajasthan Spinning & Weaving Mills [2009 (5) TMI 15 - SUPREME COURT OF INDIA] - Section 11AC of Central Excise Act is not applicable to every case of non-payment or short-payment of duty - Conditions mentioned in Section 11AC should exist for imposition of penalty thereunder - the Commissioner has himself held that there is no mala fide on the part of assessee, thus, there was no reason to uphold the imposition of penalty upon the appellant – penalty imposed upon the assessee set aside – Decided in favour of Assessee.
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2013 (12) TMI 1391
Penalty u/s 11AC - Held that:- The assessee's intention was not to evade payment of duty as the assessee extended all possible help to finalise the issue - The appellants supplied the computerized ledger and paid the amount at the spot along with interest - The clearing of duty and part of interest prior to the completion of the proceedings pointed out their bona fide intention - As there was no intention to evade payment of duty by way of suppression of facts or misrepresentation penalty u/s 11AC cannot be imposed - Decided in favour of assessee.
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