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Central Excise - Case Laws
Showing 21 to 40 of 247 Records
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2013 (9) TMI 1035 - CESTAT MUMBAI
Valuation - physician samples of pharmaceutical products manufactured by the appellant on behalf of the principal manufacturers - valuation u/s 4 or 4A? - Held that: - the physician samples manufactured by the appellant would be liable to duty under Section 4 value and not on the basis of Section 4A value - appeal allowed.
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2013 (9) TMI 1034 - ANDHRA PRADESH HIGH COURT
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... ... ..... on of the pre-deposit, it is the bounden duty of the Tribunal to come to a conclusion whether the appellant would face hardship or not. There may be fictional hardship and also actual hardship. It is settled position of law that prima facie strong case is one of the factors to adjudge hardship. But this is not alone. Therefore, the appellant has to establish that there will be a real hardship. We find that the learned Tribunal need to re-look the matter. Accordingly, we keep the impugned judgment and order of the learned Tribunal which relates to refusal to pass an order dispensing pre-deposit in abeyance and the learned Tribunal will decide the matter in terms of this order within a period of six weeks, provided the appellant produces all these materials before the said Tribunal by filing a separate application within two weeks from date. If no such application is filed, the order passed by this Court will stand recalled and set aside. The appeal is accordingly disposed of.
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2013 (9) TMI 1030 - GAUHATI HIGH COURT
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... ... ..... ded could not be a ground for condonation as the petitioner could have made some other arrangement for filing the appeal. 4. We have heard learned counsel for the parties. 5. We are of the view that approach adopted by learned Commissioner (Appeals) is not sound in law. Power of condonation of delay has to be exercised to advance substantial justice and a pragmatic approach has to be adopted in dealing with the issue. 6. It may not be always practical to make alternative arrangement at the last minute as observed by the Commissioner (Appeals). The petitioner having engaged a counsel of its choice and there being no reason to disbelieve ground put forward, delay ought to have been condoned. 7. Accordingly, we allow this petition, set aside the impugned order and direct that the appeal of the petitioner be heard on merits, in accordance with law. 8. The petitioner may appear before the appellate authority for further proceedings on 19th December, 2013.
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2013 (9) TMI 1028 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... decided on 9-5-2013 (Commissioner of Central Excise v. M/s. Honda Motorcycle & Scooter India Pvt. Ltd.) pertaining to the same assessee and a judgment in Tata Engineering & Locomotive Company Limited, 1994 (72) E.L.T. 525. In view of the fact that controversy in the appeal is covered against the revenue by judgments in CEA 52 of 2012, decided on 9-5-2013 (Commissioner of Central Excise v. M/s. Honda Motorcycle & Scooter India Pvt. Ltd.) 2014 (303) E.L.T. 193 (P&H) and Tata Engineering & Locomotive Company Limited, 1994 (72) E.L.T. 525, the appeal is dismissed.
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2013 (9) TMI 1026 - CESTAT NEW DELHI
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... ... ..... Tri. - Del.). We also note that in an another decision the Tribunal has considered the entire case law on the subject and has held that Education Cess and Higher Education Cess is not exempted in terms of the said notification and the assessee located in the area of J & K cannot claim refund of the same. This was so held in the case of CCE, Jammu v. Tawi Chemical Industries vide Final Order No. A/999-1127/2012-Ex DB dated 31-8-2012 2013 (290) E.L.T. 734 (Tri-Del). As such we find no merit in the present appeals. Accordingly, both the appeals are rejected. (Dictated & pronounced in the Open Court)
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2013 (9) TMI 1025 - CALCUTTA HIGH COURT
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... ... ..... he learned advocate for the appellant. Therefore, that order dismissing the appeal is clearly bad. (b) The application for restoration made by the appellant was a correct step, according to us, because the appeal had been dismissed ex parte. The Tribunal did not apply its mind nor did try to find out whether any ground had been made out for the purpose of recalling the ex parte order dated 17th September, 2012 dismissing the appeal. They purported to dismiss the application on the ground that the appeal itself was unmeritorious, which they could not have done. (c) We are satisfied that both the orders dated 17th September, 2012 and 17th April, 2013 were passed without application of mind. 4. The order under challenge is, therefore, set aside. The order dated 17th September, 2012 is also set aside. 5. The appeal shall be heard on merit on a day to be fixed by the Tribunal upon notice to the parties. 6. Both the application and the appeal are, thus, disposed of.
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2013 (9) TMI 1019 - ANDHRA PRADESH HIGH COURT
Clandestine removal - documents recovered broker of final product of assessee - Whether it is appropriate for the Tribunal to set aside personal penalty assailed by Shri Rameshwarlal Rathi without appreciating the provisions as contained in Sections 9D and 14 of the Central Excise Act and on the grounds that the Commissioner has not examined the individual role as it was proven beyond doubt that he has indulged himself in systematic evasion of Central Excise duty, rendering himself liable for penalty under Rule 26 of Central Excise Rules, 2002 - Held that:- In order to impose penalty personally, it is settled position of law that the role of the individual has to be examined. In the instant case, the Tribunal found that the Commissioner has not examined the individual roles nor recorded a categorical finding justifying the penalty imposed. The learned Tribunal has correctly vacated the personal penalty assailed by the respondent, as the conditions for imposition of penalty are not simply satisfied - Decided against Revenue.
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2013 (9) TMI 1018 - DELHI HIGH COURT
Interest on refund claim - Delay in refund claim - Held that:- As far as prayer for payment of interest from the date of deposit, i.e., 8th August, 2008 is concerned, there is no statutory provision for payment of interest from the said date and the statutory provision, i.e., Section 35FF permits interest only from the date of expiry of three months from the date of communication of appellate order to the department. The second prayer in the writ petition is for direction to pay interest @ 12% per annum from the date of pre-deposit of ₹ 55 lacs. As noticed above, the constitutional validity of Section 35FF of the Central Excise Act has not been challenged - Decided against assessee.
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2013 (9) TMI 1015 - CESTAT MUMBAI
Availment of wrongful credit - Penalty u/s 11AC - Held that:- The department sought to deny Modvat credit on the inputs used by the respondents in the manufacture of their final product copper powder on the ground that the scrap millscale/sludge cannot be directly used without oxidization and supplier/suppliers have in their statements submitted that they have never supplied the scrap in the form of millscale/sludge. - Commissioner has considered all the aspects raised in the appeal. The department could not produce anything contrary - receipt of the scrap by respondent is not in dispute and the department could not show that the respondents have clandestinely removed or disposed the said scrap - No reason to interfere with the finding of the ld. Commissioner (Appeals). Therefore, the impugned order is upheld - Decided against Revenue.
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2013 (9) TMI 1014 - CESTAT MUMBAI
Classification of goods - Classification under CETH 3808.10 or under CETH 3808.90 - Held that:- If one examines carefully the product literature, the use of the product, the chemical examiner’s report, the technical literature on the subject and the HSN Explanatory Notes in respect CETH 38.08, what emerges is that the product “wudcure” manufactured by the appellant is more appropriately classifiable under Heading 3808.10 as an insecticide and not under the residual category of 3808.90 which covers products such as disinfectants and the like. - As held by this Tribunal in the case of Industrial Organic Corporation Ltd.(1998 (6) TMI 382 - CEGAT, NEW DELHI), classification under Insecticides Act, 1968 is not determinative of a product’s classification under the Central Excise Tariff Act. Thus even if a product does not conform to the definition of ‘insecticide’ in the Insecticides Act, 1968, it can still be classified as an insecticide for the purposes of Central Excise Tariff if the product is marketed as an insecticide and is used as such. In the present case, the test of marketability and use as an insecticide is satisfied. Further, it is not necessary that to merit classification as an insecticide, the product should kill the insect. Even if the product repels the insects, it would suffice as can be seen from the HSN Explanatory Notes and as held by this Tribunal in the case of Bayer Indian Syntans Ltd. case (2011 (4) TMI 850 - CESTAT, CHENNAI). - Classification of the product manufactured by the appellant under CETH 3808.10 as it stood at the relevant time. - Decided in favour of assessee.
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2013 (9) TMI 1010 - CESTAT AHMEDABAD
Penalty u/s 11AC - Scope of Show cause notice - Held that:- If a show cause notice does not bring out the charges against the appellant clearly by giving all the relevant facts, the same has been held to be inappropriate proceedings and appeals have been allowed. In the present case also detailed factual matrix of clearances of both units and why duty liability is attracted has not been provided in the show cause notice. No show cause notice has been issued to the other unit of the Company. No proper justification has been given in the show cause notice, giving specific evidences and reasons to suggest that there is wilful misstatement or suppression on the part of the appellant with intention to evade payment of duty.
In the absence of essential factual details, it has to be held, in view of the case laws relied upon by the appellant and discussed above, that show cause notice is the foundation of adjudication proceedings and if the charges are not brought out properly to the knowledge of assessee, then he should not face charges by any order passed beyond the facts contained in the show cause notice. Appellant has, therefore, rightly taken a stand that proceedings were taken on the facts not stated in the show cause notice, dated 27-3-2006 and when this was brought to the notice of the lower authorities then either the issue was not framed or the same was brushed aside holding that the issue is not relevant. Any infirmity in the show cause notice cannot be bridged by the adjudication proceedings and the order passed by the adjudicating authority and the first appellate authority. - show cause notice dated 27-3-2006 issued to the appellant did not disclose all the essential facts in the body of the show cause notice in order to defend properly and adjudicating authority has gone beyond the scope of facts narrated in the show cause notice. - Decided in favour of assessee.
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2013 (9) TMI 1009 - CESTAT KOLKATA
Maintainability of appeal - Section 35A of CEA,1944 - Held that:- second appeal cannot lie under Section 35A of CEA, 1944 against the same Order-in-Original which has been challenged earlier before the Commissioner (Appeals) by filing a proper appeal in the prescribed format in Form EA-1 under Section 35A on various grounds; and after due consideration of all grounds raised in the said Order-in-Original and observing principles of natural justice, in exercising its appellate jurisdiction, the ld. Commissioner (Appeals) has disposed of the appeal on merit. I agree with the view of the ld. Commissioner (Appeals) that in absence of any statutory provision, the direction of the Committee on Disputes (constituted for resolving the dispute between Public Sector Undertaking and Government Department, in carrying out the litigation before Tribunal and other higher judicial fora), to the appellant to approach the Commissioner (Appeals) for resolution of dispute, which resulted into filing the second appeal under Section 35A of the Central Excise Act, 1944, against the same Order-in-Original, is not binding on him being devoid of any authority under the law.
Second appeal had been filed by the appellant beyond the statutory and condonable limit of 90 days (60+30) and hence not maintainable as the Commissioner (Appeals) has not been vested with the power to condone delay in filing the appeal beyond thirty days in addition to the statutory period of sixty days, in view of the principle of law settled by the Hon’ble Supreme Court in Singh Enterprises case (2007 (12) TMI 11 - SUPREME COURT OF INDIA). - Decided against assessee.
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2013 (9) TMI 1008 - CESTAT MUMBAI
Waiver of pre deposit - whether conversion of copper hot rolled coils into copper flats also known as patta/patti would amount to ‘manufacture’ - Held that:- Both the raw materials and the finished products remained as “flat products” only and the Tariff classification also did not undergo any change. No evidence has been lead by the Revenue to clearly establish that the product which has been obtained after rolling the copper hot rolled coils into copper flats resulted in a distinct commodity having a different name, character and use. In the absence of any such evidence, which is the primary responsibility of the Revenue, the appellant has made out a strong case in their favour for grant of stay - Stay granted.
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2013 (9) TMI 1007 - CESTAT NEW DELHI
Waiver of pre deposit - Penalty u/s 11AC - processing was being done by them on job work basis on the grey fabrics supplied by the customers - Non supply of documents - Difference of opinion - Majority order - Held that:- While appellant says that documents were not given for which appellant was prevented to lead defence, Revenue says all documents were given - Therefore, it would be preferable to hear the appeal agreeing with ld. Technical Member who was of the view that appellant has already deposited ₹ 19,08,321/- and considered to be a measure protecting Revenue. - appellant having grievance of no copies of documents supplied by Revenue, Hon’ble High Court repeatedly on same issue of violation of principle of natural justice directed for supply of copies of relevant documents. If appeal is heard, both sides shall be able to guide the Bench in the course of regular hearing. - Stay granted.
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2013 (9) TMI 1006 - CESTAT MUMBAI
Suppression of production of goods - Clandestine removal of goods - Imposition of penalty - Held that:- Receipt of the material has been admitted by Shri Jagdish Prasad Tak, the factory in charge and authorized signatory of the appellant firm in his statement dated 26-7-2004. Sale of the said material to the appellant has been confirmed by M/s. Hind Silk Mills also in their letter dated 14-9-1994. The appellant in their letter dated 30-7-1994 addressed to the investigating agency has confirmed that they had not entered the receipt of the said goods in their Form IV register and that they were voluntarily depositing the duty amount of ₹ 28,33,303/- towards the textured yarn manufactured and cleared without payment of duty out of the POY received from Hind Silk Mills. Shri Arun Bhartia, Director of the appellant firm in his statement dated 25-10-1994 has confirmed the above facts. Thus the receipt of the said material and consumption of the same in the manufacture of PTY and clearance without payment of duty is clearly established and supported by the relevant records and statements.
Appellant’s plea subsequently that these shortages were lying as work-in-progress is clearly an afterthought and has been rightly rejected by the adjudicating authority. In the light of these evidences, the conclusion of the adjudicating authority that the quantity found short was cleared by the appellant without payment of duty cannot be faulted at all.
Once the charge of suppression of production and clandestine removal stand established, penal consequences under Rule 173Q automatically follows. Therefore, imposition of penalty on the appellant firm under Rule 173Q(1) and confiscation of land, building, plant and machinery under Rule 173Q(2) are mandated under the law and the quantum of penalty or fine imposed is not harsh or excessive when considering the amount of duty sought to be evaded. - Decided against assessee.
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2013 (9) TMI 1005 - CESTAT MUMBAI
Classification of goods - soft waste generated during the process of conversion of Polyester Tow to Polyester Tops - Held that:- waste referred to under Headings 5503.11, 5503.12, 5503.19 and 5503.20 would apply only to waste arising in, or in relation to, the manufacture of man-made staple fibres. It is not in dispute that top, which is manufactured by the appellant in the factory for captive consumption is man-made fibres. In fact the raw fibre, tow and tops are of various forms of man-made staple fibres only. - Fair Child’s Dictionary of Textiles dictionary describes ‘Top’ as a bunch of fibre which have been straightened, parallelized and separated from short fibres by combing or made directly from the ‘Tow’. Therefore, Top is also a form of fibre and hence, waste arising while converting Tow into Top, is a waste arising in the process of manufacture of fibre and, therefore, the provisions of Note 3 of Chapter 55 is satisfied. - The process of conversion of Tow into Top covers waste arising during manufacture of staple fibres - Goods are covered under CETH 5503.19 - Decided against assessee.
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2013 (9) TMI 1004 - CESTAT KOLKATA
Classification of goods - Classification under 8455.10 or under 8455.90 - Held that:- Appellants has not seriously disputed the classification of the subject items under Chapter sub-heading 8455.90 as ‘parts’, before us. Thus, following the decision of this Tribunal in Simplex Engg. & Foundry’s case (2004 (8) TMI 296 - CESTAT, NEW DELHI), we hold that the items in dispute merit classification under Chapter sub-heading 8455.90.
Description of the goods declared by the appellant remains unchanged before and after restructuring of the Chapter Heading No. 84.55 of CETA, 1985 - No merit in the allegation of the Department that lesser duty had been paid by the appellant resorting to suppression or misdeclaration of facts. Consequently, we have no hesitation to hold that the demand notice issued for differential duty is barred by limitation. - Decision in the case of Tata Iron & Steel Co. Ltd. v. Union of India & Others [1988 (5) TMI 39 - SUPREME COURT OF INDIA] - Decided in favour of assessee.
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2013 (9) TMI 1003 - GOVERNMENT OF INDIA
Denial of rebate claim - rebate of duty paid was on declared ARE-1 value of the goods which was much higher than FOB value shown in shipping bills - FOB would be transaction value for the purpose of Section 4 of the Central Excise Act, 1944 - Held that:- Place of removal may be factory/warehouse, a depot, premise of a consignment agent or any other place of removal from where the excisable goods are to be sold for delivery at place of removal. The meaning of words “any other place” read with definition of “sale”, cannot be construed to have meaning of any place outside geographical limits of India. The reason of such conclusion is that as per Section 1 of Central Excise Act, 1944, the Act is applicable within the territorial jurisdiction of whole of India and the said transaction value deals with value of excisable goods produced/manufactured within this country.
Any amount paid in excess of duty liability on one’s own volition cannot be treated as duty. But it has to be treated simply a voluntary deposit with the Government which is required to be returned to the respondent in the manner in which it was paid as the said amount cannot be retained by Government without any authority of law
In the case applicant has paid duty on CIF value which was declared as value in Central Excise Invoice for payment of duty. In view of position explained above, the freight & insurance expenses incurred beyond place of removal cannot form part of transaction value. In this case the lower authorities has determined the FOB value as transaction value since goods stand sold at the port of export where possession of goods is transferred. As such, the rebate of duty paid on FOB value is rightly sanctioned. However, the excess paid amount be allowed as recredit in the Cenvat credit account from it was paid/debited - Decided partly in favour of assessee.
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2013 (9) TMI 1002 - GOVERNMENT OF INDIA
Denial of rebate claim - utilization of accumulated Cenvat credit of Additional Excise Duties (T&TA) towards payment of basic excise duty on clearance of exported goods and sought rebate of duty paid - Held that:- As per Rule 3 of Cenvat Credit Rules, 2004, a manufacturer can take Cenvat credit of duties paid. The Rule 3(4) provides for manner of utilization of Cenvat credit availed. The Rule 3(7)(b) of said rules stipulated that Cenvat credit of AED (T&TA) shall be utilized towards payment of duty of excise or as the case may be of service tax leviable under the said Additional Duties of Excise (Textiles & Textile Articles) Act, 1978 on any final products manufactured by the manufacturer or for payment of such duty on the inputs themselves if such inputs are removed as such or after being partially processed or any output service. The provisions of said Rule 3(7)(b), does not permit the utilization of Cenvat credit of AED (T&TA) towards payment of Basic Excise Duty. - There is no ambiguity in the provisions of circular No. 267/11/2003-Cx-8, dated 22-3-2007. Applicant was entitled for refund under Rule 5 subject to compliance of condition/procedure laid down therein. But, there was no provision under the rules for payment of basic excise duty from such Cenvat credit of AED (T&TA). Applicant has given his own interpretation which suits him and it cannot be accepted being contrary to the provisions of rule 3(7)(b) of Cenvat Credit Rules, 2004 and C.B.E. & C. Circular dated 22-3-2007 cited above. The letter dated 5-5-2010 issued by ACCE is contrary to the above said provision of law and therefore the said letter is void ab initio as held by Commissioner (Appeals). - exported goods cannot be treated as duty paid goods and therefore rebate claims are rightly held inadmissible by the lower authorities under Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. - Decided against assessee.
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2013 (9) TMI 1001 - GOVERNMENT OF INDIA
Denial of rebate claim - goods manufactured and cleared for export by 100% EOU, were exempted absolutely from payment of duty in terms of the Notification No. 24/2003-C.E. - Held that:- Notification No. 24/2003-C.E., dated 31-3-2003 issued under Section 5A(1) of Central Excise Act, 1944, exempts goods manufactured by 100% EOU and cleared for export from whole of duty unconditionally. Therefore in view of provisions of sub-section (1A) of Section 5A, the applicant manufacturer cannot pay duty. - there is no condition for availing exemption from payment of duty on goods cleared for exports. Normally the 100% EOU has to clear all the goods manufactured by them for exports as per the EOU scheme. Such units can clear the goods in DTA only with prior permission of Development Commissioner. Since there is no condition in the notification for availing exemption to goods manufactured by 100% EOU and cleared for export, the provisions of sub-section (1A) of Section 5A(1) are applicable and no duty was required to be paid on such exported goods. The duty paid without authority of law cannot be treated as duty paid under the provision of Central Excise Law. - Decided against assessee.
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