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Central Excise - Case Laws

Showing 81 to 100 of 388 Records

• 2013 (12) TMI 1293
  

  Reversal of Credit being 8% or 10% - Baggasse/press mud cleared from the factory - the inputs utilised in the manufacturing of sugar – Waiver of Pre-deposit – Held that:- Following INDIAN POTASH LTD. Versus COMMISSIONER OF CENTRAL EXCISE, ALLAHABAD [2012 (12) TMI 347 - CESTAT, NEW DELHI] which is decided in favour of assessee - the appellants have made out a case for the waiver of amounts – Pre-deposits waived till the disposal – Stay granted.

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• 2013 (12) TMI 1292
  

  Clandestine Removal of Goods – Clearance made by improperly declaring the retail sale price – Waiver of Pre-deposit – Held that:- The Tribunal has been following judgment of Hon’ble High Court of Gujarat that an assessee should deposit 8% of the amount of duty confirmed - The appellant has deposited an amount which is more than 8% of the duty liability - the amount already deposited is enough to hear and dispose the appeals – Pre-deposits waived till the disposal – Stay granted.

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• 2013 (12) TMI 1291
  

  Imposition of Penalty u/s 11AC r.w. Rule 13 of the Central Excise Rules, 2002 – Held that:- As per the section 3 of the Central Excise Act, 1944, as the goods were lying in the factory of the assessee – thus, they were not required to pay duty - the respondents are not contesting duty liability and interest paid by them - as the duty is not payable, question of mandatory penalty does not arise – Decided against Revenue.

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• 2013 (12) TMI 1290
  

  Classification of chemical preparations - Revenue was of the view that the chemical preparations made during the processing of the films are classifiable as “chemical preparations for photographic uses" under CETH 3707 of the Central Excise Tariff – Held that:- The Tribunal while remained the matter back had clearly directed the adjudicating authority to apply his mind independently on the submissions made by the appellant as regards the marketability of the products and give a detailed and speaking order on the issue - Revenue has not led any iota of evidence which shows that the various chemical preparations made by the appellant while processing of the cinematographic films are marketable or are marketed – Following CCE Vs. Famous Cine Laboratory [1992 (2) TMI 241 - CEGAT, NEW DELHI ] - Prasad Film Laboratories, Famous Cine Laboratories and Navrang Cine Center (P) Ltd. (cited the chemical preparations used in the processing of cinematographic films are not goods known to the market and hence are not exigible to duty.

  The expert's opinion also clearly shows that the preparations are mixed prior to their usage and such mixed chemical preparations are prone to oxidation and other chemical reactions which could make them less effective and such chemicals are not marketed - The department has not tested any of the samples to ascertain the shelf life/other parameters relevant for examining the issue of marketability of the products - Merely because certain chemicals are marketed cannot lead to the conclusion that the chemical preparations made in situ by the appellant are also marketable and no effort whatsoever has been made by the Revenue to establish the marketability and Revenue has failed miserably in this regard - various chemical preparations produced by them in situ and captively consumed are not marketable goods falling under CETH 3707 of the Central Excise Tariff.

  Classification of Silver residue arises out of manufacture - Revenue was of the view that the processing of the film, silver residues which are also obtained are classifiable under Chapter 26 of the Central Excise Tariff – Held that:- The duty demand on silver residue which is arising during the processing of the film, as per Chapter Note to Chapter 26, silver waste arising in the processing of the cinematographic films stands excluded from Chapter 26 and are properly classifiable under Chapter 71 and during the material period, the silver residue was exempt from excise duty – Thus, the excise duty demand in respect of silver residue also does not sustain - Once the duty demands fail, all consequential demands towards interest and penalties also fail – Decided in favour of Assessee.

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• 2013 (12) TMI 1289
  

  Benefit of Cenvat credit denied as per Rule 8(3A) of Central Excise Rule, 2002 - Default persisted more than 30 days – Waiver of Pre-deposit – Held that:- Following Manjunatha Industries Versus CCE [2013 (4) TMI 534 - KARNATAKA HIGH COURT] - Cenvat Credit was unavailable, the question of utilizing such credit would be an exercise in nullity - the appellant directed to make a pre-deposit of ₹ 7,36,74,043 – upon such submission rest of the duty to be waived till the disposal – Partial stay granted.

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• 2013 (12) TMI 1288
  

  Undervaluation of goods – Held that:- From the debit notes, it is evident that the charge of undervaluation is in respect of the AC Compressor which the appellant has manufactured and supplied - it is the appellant who has charged for the drawings and designs of the dies and the purpose for which the same is charged and the goods manufactured using these drawings and designs are very well known to the appellant – thus, it cannot be pleaded that the appellant did not know in respect of which item, the undervaluation has been alleged and the differential duty is being demanded – Includability of the value of charges of drawings and design of dies etc. for the purpose of excise duty demand has been decided by the SC in Moriroku UT India (P) Ltd. Vs. State of UP[2008 (3) TMI 513 - SUPREME COURT OF INDIA] - amortized cost should be included in the price of auto components supplied for the purpose of levy of excise duty. The cost of the product sold would include not only the cost of raw materials, labour charges and other costs but also the various cost incurred in the manufacture such as cost of capital goods like machinery, tools, dies, etc. - if the appellant has not included the amortized cost of dies or the cost of drawings and designs developed for the manufacture of excisable goods, the consideration received would be includable in the assessable value of the goods manufactured using these drawings and designs.

  Demand of Service Tax - Consulting Engineers Service – Extended period of limitation - Held that:- The appellant is a manufacturer and not a Consulting Engineer - Only w.e.f. 1.5.2006, the law was amended to include any ‘body corporate' rendering such services liable to pay Service Tax. Since in the present case, the period involved is prior to 1.5.2006, the Service Tax demand on the appellant is not sustainable in law - The fact of developing designs/drawings etc. and collecting charges separately were not disclosed by the appellant to the department – hence, the charge of suppression of facts and consequent invocation of extended period of time to demand excise duty sustainable in law – Decided partly in favour of Assessee.

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• 2013 (12) TMI 1287
  

  Credit on calcium silica boards, anchors, electrodes availed - Goods to be treated as capital goods or finished goods – Waiver of Pre-deposit – Held that:- The items were cleared with the final product for using them in the kiln/furnace - they have paid duty when these goods were cleared as finished goods - There is no dispute about payment of duty on these items – Following Ashok Enterprises Vs Commissioner of Central Excise, Chennai [2007 (11) TMI 67 - CESTAT, CHENNAI]- assessee has made out a prima facie case for full waiver of the pre-deposit of duty, interest and penalty in their favour – Pre-deposits waived till the disposal – Stay granted.

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• 2013 (12) TMI 1286
  

  Waiver of penalty and interest - Clandestine removal of excisable goods - Held that:- When the issue was brought out, respondent paid duty payable on the goods along with interest and 25% of the duty amount as penalty immediately on issue of the show cause notice - where the payments as stated in Section 11A(1A) are made, all the proceedings in respect of the assessee and other persons shall be deemed to be conclusive as to the matters stated therein - Decided against Revenue.

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• 2013 (12) TMI 1285
  

  Rejection of refund claim - Bar of limitation - Held that:- Appellant cleared the goods under the excise invoices showing appropriate payment of duty. The claim of the appellant is that the appellants are job workers and paying duty at the value at which the principal cleared the goods. Subsequent to the clearance of the goods, the principal had given certain discounts to their customs and the principal manufacturers issued credit notes in respect of the excess duty paid - assessments were not provisional, therefore, subsequent change in respect of the value will not affect the payment of proper duty at the time of clearance - Decided in favour of assessee.

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• 2013 (12) TMI 1284
  

  Duty demand - Exemption of duty - Benefit of Notification No. 50/2003-C.E. - Held that:- exemption should be available to the appellants because the factory premises is within the specified Khasra numbers and only a drainage on the boundary of their land is falling under Khasra No. 281. So we grant waiver of the pre-deposit of dues including the penalty on both the appellants arising out of the impugned order for admission of the appeals - Stay granted.

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• 2013 (12) TMI 1283
  

  Demand of duty - Held that:- orders have been passed by the original authority and the lower appellate authority subsequent to the order of remand by the Tribunal, which was not challenged by the department. The lower appellate authority has confirmed the order of the original authority in regard to the demand of duty, interest and penalty. The order of review passed by the Committee of two Commissioners nowhere points out to what extent duty demand confirmed by the original authority is wrong nor any basis has been provided for questioning the demand amount confirmed by the original authority. As such, I find no material in the review order requiring interference with the order passed by the lower appellate authority - Decided in favour of Revenue.

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• 2013 (12) TMI 1282
  

  Classification of goods - Classification under Heading 8427 or under 8431.20 - Held that:- impugned goods are attachments for back hoe and loader, which is classifiable under Heading 8427,which covers fork lift trucks and other works trucks fitted with lifting or handling equipment. As such, the impugned goods require to be classified under 8431.20 which cover parts suitable for use solely or principally with the machinery of Headings 8427 - Following decision of Shinhan Plasto (I) P. Ltd. v. CCE, Chennai [2008 (2) TMI 157 - CESTAT, CHENNAI] - Decided against Revenue.

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• 2013 (12) TMI 1280
  

  Duty liability as per Rule 8 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 – Waiver of Pre-deposit – Held that:- Rule 8 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 is applicable when there is addition of packing machines in the factory during a particular month - the appellant has installed two new packing machines in the month of July 2009 - when there is addition or installation of a new machine on any particular day of the month, it has to be treated that the total number of machines working on any particular day were working for the entire month - As such the duty for the entire month is prima facie payable by the appellant – there was no prima facie case in favour of Assessee – thus, the assessee is directed to deposit the entire amount of pre-deposit – stay not granted.

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• 2013 (12) TMI 1242
  

  Penalty set aside – payment of duty on parts of pressure cookers – Held that:- The reasoning given by the Tribunal cannot be said to be illegal or unwarranted - The assessee was entitled to exemption by virtue of notification dated 1.3.2002 - The notification was withdrawn on 27.4.2002 – Thus, The non payment of duty for some time after withdrawal of exemption will not lead to finding of intentional evasion of duty – there was no substantial question of law arises for consideration – Decided against Petitioner.

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• 2013 (12) TMI 1241
  

  Abatement claim as per Rule 96ZO(3) of Central Excise Rules, 1944 due to closure of furnace – Failure to comply with the Obligations under the rule – Held that:- Omission of a Rule as opposed to a mere repeal or deletion, does not confer legitimacy on pending proceedings as they would necessarily come to an end but this principle of law does not apply to the present case – Relying upon Shree Bhagwati Steel Rolling Mills V/s Commissioner of Central Excise, Chandigarh [2006 (10) TMI 17 - HIGH COURT OF PUNJAB & HARYANA (CHANDIGARH)] - With the introduction of Section 38A in the Central Excise Act, 1944, the omission or otherwise of Rule 96ZO(3) of the Rules would not affect any obligation or liability that had already accrued or incurred – thus, the contention that omission of Rule 96ZO(3) of the Rules would render adjudication of proceedings of abatement based upon Rule 96ZO(3) of the Rules a nullity, are without merit – Decided against Appellant.

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• 2013 (12) TMI 1240
  

  Jurisdiction of Tribunal - Whether the learned Tribunal was justified in recording the finding on merits while dealing with an application for dispensation of pre-deposit – Held that:- The Tribunal in exceptional cases can assess the prima facie case treating the same to be a hardship for maintaining the appeal by dispensation of pre-deposit – in the present case, the Tribunal while doing so observed adversely on merit of the case - the Tribunal cannot do it in a negative way – Thus, the portion which starts with the words "the issue is covered by the precedent Tribunal's decision in the case of LCS City Makers Pvt. Ltd. v. CST [2012 (6) TMI 363 - CESTAT, CHENNAI] - The Commissioner shall decide the matter independently, without being influenced by the observations made – the petitioner directed to make a payment of 50% of the demanded amount as directed by the Tribunal – Decided partly in favour of Petitioner.

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• 2013 (12) TMI 1239
  

  Liability to pre-deposit the duty u/s 35F of the Central Excise Act, 1944 – Held that:- A plain reading of the provision shows that pre-deposit is not mandatory in all appeals filed under Section 35B of the Act, but in certain appeals specified therein pre-deposit is not required at all - the order dated 30.11.2011 itself shows that the writ petitioner was not heard before passing the order - the matter had already undergone several adjournments at the instance of the petitioner and there was no representation on behalf of the petitioner despite notice - the Tribunal could not be found fault with in proceeding with the matter in the absence of the petitioner, the Tribunal is bound to pass an order on merits assigning the reasons for its conclusion - the CESTAT directed the assessee to pre-deposit 50% of the duty demanded is absolutely without any reasons.

  The Tribunal did not go into the petitioner's plea of financial hardship, particularly the plea that the petitioner company has been referred to BIFR – Thus, the CESTAT is not justified in concluding that the petitioner failed to comply with the condition of pre-deposit of 50% of the duty demanded - the petitioner deserves to be provided an opportunity to renew its request for waiver of pre-deposit – Decided in favour of Petitioner.

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• 2013 (12) TMI 1238
  

  Extended period of limitation – Held that:- The Court recorded that the classification list had been approved after carrying out verification - one consignment in transit was seized when the goods were found containing labels of foreign brand - RT-12 returns were being regularly filed - there was a finding to the effect "the invoices containing description of the goods have all been regularly approved by the Department” - all facts were within the knowledge of the Department - there was no justification for invoking the extended period of limitation.

  Branded and unbranded product cleared - The declaration filed with effect from 5th April, 1994 was a false declaration - The basic reason is the RG-1 register, followed by RT-12 returns, the letter of Superintendent of Central Excise dated 14th November, 1994 and the reply dated 30th November, 199 – Hence, the RG-1 register which reflects the entries in RT-12 returns, does not have basic documents to support the entries made - unless special knowledge of the appellant is inserted, it would not be possible to ascertain which customer had received the branded product and which customer received own branded/unbranded product.

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• 2013 (12) TMI 1237
  

  Vacancy due to retirement in the Tribunal – Stay application could not be taken up – Held that:- There was a vacancy for considerable time in the Tribunal on account of absence of a technical member and it was not functioning till very recently for that reason - although a new member is appointed to fill the said vacancy, it would still take time for it to deal with all the pending stay applications in the appeals which have been filed before it since the said vacancy arose – the respondents are restrained from making recovery of the disputed duty, interest and penalty from the petitioners – Decided in favour of Petitioner.

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• 2013 (12) TMI 1236
  

  Eligibility of Notification No.70/92 - Job-worked goods cleared by the Applicant – Waiver of Pre-deposit – Held that:- Prima facie, the condition of Notification has not been complied with and relying upon Commissioner of Central Excise, New Delhi vs. Hari Chand Shri Gopal [2010 (11) TMI 13 - SUPREME COURT OF INDIA] the benefit of the Notification cannot be extended to the Applicant - the second show cause notice invoking extended period of limitation on the same issue, may not be correct - the Applicant could not be able to make out a prima facie case for total waiver of pre-deposit of amount - the Applicant is directed to deposit Rs. 10.50 Lakhs as pre-deposit – upon such submission rest of the duty to be stayed till the disposal – Partial stay granted.

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