|
Advanced Search Options
Central Excise - Case Laws
Showing 81 to 100 of 247 Records
-
2013 (9) TMI 822 - ALLAHABAD HIGH COURT
Waiver of pre-deposit - Held that:- By way of clarification, it may be added that if the interest has not been quantified, the appellant may be permitted to deposit 25% in cash and furnish bank guarantee in respect of the duty - Subject to fulfillment of these conditions, the deposit of interest amount shall be deemed made - Decided in favour of assessee.
-
2013 (9) TMI 821 - CESTAT NEW DELHI
Classification of Goods - Activity Manufacture OR Not - Assesse were engaged in the manufacture of Refined Oil falling under chapter heading No.1503.00 of the Central Excise Tariff Act, 1985 –Whether the Soya Gum which was settled at the bottom of the storage tank along with some oil and the separation of that oil from the said sludge by the process of decantation/filteration so to recover some crude oil, which was sold by the assessee as recovered oil can be said to be the result of any manufacture or not - Held that:- It was seen that the assessee had categorical stand that such Soya Gum which was settled at the bottom of storage tank and was removed gently along with some oil cannot be held to be an excisable item emerged as a result of manufacturing process - We find that Commissioner (Appeals) had discussed the issue in detail and had rightly held that such Soya Gum and recovered oil cannot be held to be the goods emerging as a result of manufacture - Soya Gum and the other impurities were part and partial of the purchased crude oil - The same settle down during the storage of the crude oil in the storage tanks - The upper part of the crude oil was further taken up for refining of the same.
What was left at the bottom of the storage tanks was the impurities which were already contained for the said crude oil - As such the impurities along with some oil, which settle down at the bottom of the tank were nothing but part of the crude oil itself - Similarly the separation of said crude oil from the sludge obtained by the process of filteration/decantation was again nothing but crude oil - The same was not refined by the assessee and was sold to the soap manufacturers etc. When the Soya Gum and the recovered oil were part of the crude oil, which was the starting raw material for the manufacture of refined oil, it cannot be said that the appellant have manufactured Soya Gum and recovered oil - The same one admittedly a part of the crude oil, which does not get converted into refined oil - A part of the crude oil had been used by the appellant for the manufacture of the refined oil and a part of the crude oil, which could not be used for the manufacture of refined oil, stands sold by them as Soya Gum and recovered oil - Accordingly we agree with the detailed findings of Commissioners (Appeals), wherein he had taken into account the explanatory note to Chapter 1507.00, the report of the Deputy Commissioner, as also the explanatory note of Chapter 15 – there was no infirmity in his views - the appeal filed by the revenue was rejected.
-
2013 (9) TMI 820 - CESTAT KOLKATA
Short Payment of Duty - Held that:- Assessee had discharged duty on the yarn and did not discharge duty on the fabrics under the mistaken belief that the excise duty is exempted on fabrics - There was no suppression of facts and it was only under bonafide mistaken belief that once the duty was discharged on the yarn, duty not to be paid on the fabrics stage.
Penalty u/s 11AC – Waiver of Pre-Deposit – Held that:- The total liability had worked out around Rs.11.30 lakhs against the clearances of fabrics - The applicant has already paid an amount of Rs.8.32 lakhs on 03.04.1998 and requested for adjustment of Rs.3.79 lakhs paid by them on yarn stage - Even though the applicant has discharged duty liability on 3rd April, 1998 - prima-facie they would also be required to discharge interest also – Upon such submission rest to be waived.
-
2013 (9) TMI 819 - ALLAHABAD HIGH COURT
Constructive Res Judicata - Validity of proviso to Rule 8 of the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 - whether ulta-vires to section 3A - Held that:- The challenge to the vires of the Rules in this second writ petition was barred by principles of constructive res judicata inasmuch as if the petitioner was aggrieved by the Rules, he could have challenged the Rules, when the Rules were notified or when the notice to show cause was served on him, and in any case in the first writ petition challenging the notice - The petitioner having failed to avail the opportunity and having raised all the points including the issue of the validity of the Rules before the Adjudicating Authority, cannot be allowed to file this writ petition challenging the vires, only to avoid filing the appeal - It was apparent that having failed to substantiate his case before the Adjudicating Authority, instead of filing the appeal the petitioner was taking a chance in the High Court to challenging the vires of the proviso – Decided against Petitioner.
-
2013 (9) TMI 818 - CALCUTTA HIGH COURT
MODVAT Credit - Whether ‘Glass Bottles’ used for packaging/containing aerated water were eligible for modvat credit under Rule 57A of the Central Excise Rules, 1944 as it existed during the material period – Held that:- The law as settled in the reports leads to an inevitable conclusion that the circular dated 13.9.1995, wherein the Board allowed the credit of duty paid on Glass Bottles/Crates only if the value of such Bottle was included in the value of the final product in case of a claim for modvat credit, binds the revenue and they cannot take a stand that the said circular was contrary to either Section 4 of the Act or Rule 57A of the Rules.
Interpretation of Explanation (iii) appended below Rule 57A - Whether the CEGAT’s interpretation of clause (b) (iii) of the explanation appended below Rule 57A of Central Excise Rules, 1944 as it existed during the material period of its order was lawfully correct – Held that:- Following C.C.E., Chandigarh-II –vs- Dhillon Kool Drinks & Beverages Ltd. [2007 (12) TMI 228 - HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH ] - Under Rule 57A of the Rules, Modvat credit was admissible on the specified inputs used in the manufacture of final product - Explanation (iii) to Rule 57A of the Rules define that inputs does not include packaging material if its value had not been included during the preceding financial year in the cost of assessable value - The Tribunal had categorically found as a fact that the cost of packing material had been included in the assessable value although on installment basis and, therefore, the assessees’ were entitled to Modvat credit of duty. The plea taken by the assessees’ that the cost of glass bottles and plastic crates was included in the aerated water could not be rebutted by the revenue.
Overriding Effect of Section 4 - Whether the provisions of Rule 57A of the Central Excise Rules, 1944 can override the provisions of Section 4 of the Central Excise Act, 1944 - Whether the Hon’ble Tribunal was correct in holding that the assessee was entitled to claim modvat credit by exercising his option to include the value of the durable and returnable packaging material or container in spite of the fact that such packaging material of container was specifically excluded from the definition of ‘input’ in Rule 57A of the Central Excise Rules, 1944 read with Section 4 (4) (d) (I) of the Central Excise Act, 1944 - Held that:- The respondent have been including the value of the Glass Bottles and the Plastic Crates on prorata basis in the assessable value of the final products i.e. the aerated water which was permissible under the circular dated 13.09.1995 - The department cannot take a different stand and say that the aforesaid circular offends Section 4 of the Act - The respondent also submitted the report of the Charter Accountant suggesting the aforesaid fact and, therefore, this Court does not find that the stand of the petitioner can at all be tenable.
There was a distinction between a decision in a particular assessment by a quasi-judicial authority and a decision on principle by the Board - While an instruction issued u/s 37B cannot be binding upon a quasi-judicial authority under the Act, the departmental officers conducting the lis before such quasi-judicial authority cannot take a stand contrary to the directive/instruction issued.
The instructions which may be binding on the Central Excise Officers were not binding on the Assessee who may question the correctness of the same before a quasi-judicial authority and before a Court - Both the quasi-judicial authority and a fortiori, the Court, can question the correctness of the instructions - Decided against the revenue.
-
2013 (9) TMI 817 - ALLAHABAD HIGH COURT
Loss of Molasses During Storage – Shortage Amounts to Removal of Molasses OR Not - Whether petitioner had suffered loss of molasses during storage due to natural process in the season – Held that:- The petitioner applied for remission but the application was rejected - The order was not challenged by the petitioner at any stage - It had not been challenged even in the present writ petition - Therefore, it had attained finality, meaning thereby, that plea of the petitioner that the aforesaid quantity of molasses was destroyed by natural causes during the storage was not accepted by the authorities and had failed - Since the order had not been challenged and having become final shall be treated to have been accepted by the petitioner, leaving no scope to challenge the levy of excise on the said part of alleged molasses - there was no loss due to natural process – it had been removed or disposed of without payment of excise duty and the petitioner as such was liable for its payment and penalty both – Decided against Petitioner.
-
2013 (9) TMI 816 - ALLAHABAD HIGH COURT
Demand of Cash Security – Held that:- Prima facie the investigation was still pending and that though the petitioner had co-operated in giving statements, he submitted a letter providing some more inputs and explaining the deficiency - Even if no show cause notice had been issued, since the investigation was still pending, the respondent had not acted arbitrarily in allowing the release of seized goods provisionally subject to furnishing Appropriate Bond in Form B-11 in which a demand of security or surety can be made in Para 3.2 of Chapter XVII of Supplementary Instructions issued under Rule 31 of the Central Excise Rules, 2002.
The interest of revenue will be protected in case the demand of cash security was substituted by bank guarantee for provisional release of seized goods subject to other conditions mentioned – Decided in favour of Petitioner.
-
2013 (9) TMI 814 - CESTAT NEW DELHI
CENVAT credit - transfer of credit - Rule 10 - transfer of second unit to the first unit - Held that:- When Rule 10 was invoked, we have perused the legislative intent appearing in Rule 10(1) of the Cenvat Credit Rules, 2004 dealing with the cases of shifting of units from one site to another site and also the occasions of merger/amalgamation/lease or transfer of the factory to a joint venture permitting Cenvat credit to be utilised. In between these two situations, we notice both the situations appearing in law have their own independent existence and speak for themselves. Ld. DR argues that the factory as a whole need to be shifted. This appears to be an absurd proposal and shall make the rule unworkable. It is elementary principle of law that the interpretation which fosters the legislative intent should be preferred to the interpretation of law which brings chaos - Decided in favour of assessee.
-
2013 (9) TMI 813 - CESTAT NEW DELHI
Cenvat Credit of Additional Duty of Customs (CVD) - whether repacking of goods amount to manufacture of not - import of cerium chloride - Held that:- adoption of any other treatment to render the product marketable to the customer” shall amount to manufacture. It is not only packing of the goods into retail packs which amounts to manufacture. Further, it is also to be noted that Cenvat Credit Scheme is for ensuring that the credit chain from the bulk stage to the ultimate consumer is not broken. The chemical under consideration by its very nature is to be used in industrial processes and different users requiring it may need it in different quantities. What is “retail sale” depend on the product involved - Applicant had made out a prima facie case for total waiver of duty and penalty demanded under the impugned order. I grant such wavier for admission of the appeal - Decided in favour of assessee.
-
2013 (9) TMI 778 - KARNATAKA HIGH COURT
Assessee filed an application for stay of the order - Tribunal granted stay of recovery vide Stay Order - subject to the assessee making a pre-deposit of 1/5th of the total amount of duty - Held that:- While the Tribunal may have the power to extend the stay, that power should be exercised in a reasonable or proper manner and on consideration. There is no indication in the impugned order that the requirements have been kept in mind or has been examined before extending the stay and also the need for safeguarding the interest of the revenue and for balancing the interest of the revenue and the assessee - order of the Tribunal is not sustainable - Tribunal could not have extended the stay order without recording the reasons and noticing the circumstances etc - The impugned order of the Tribunal is set aside and the matter is remanded to the Tribunal for fresh consideration of the application filed by the assessee and to pass orders on merits and on relevant consideration as is indicated in the 2nd proviso to Section 35C(2A) - Following decision of COMMISSIONER OF CENTRAL EXCISE, MANGALORE –vs- INDIAN OIL CORPORATION [2010 (8) TMI 212 - KARNATAKA HIGH COURT] - Decided in favour of Revenue.
-
2013 (9) TMI 777 - JHARKHAND HIGH COURT
Adjustment of pre-deposit with cenvat credit - Section 35F - Held that:- Rule(1) of Rule 3 of the Cenvat Credit Rules, 2004 does not prohibits the assessee to adjust the said credit against its liability created by either order which is sought to be challenged in appeal requiring the deposit of the amount under Section 35 F of the Central Excise Act - petitioner was entitled to have this adjustment of his credit amount against his liability under Section 35 F of the Central Excise Act - Decided in favour of assesee.
-
2013 (9) TMI 776 - ALLAHABAD HIGH COURT
Concessional rate of duty - Use of metallic parts in the manufacturing of tent - Notification No.29/2004-CE - Held that:- The use of aluminum pipes to hold the tents will not prima facie take them out of the notified goods for deny the concessional rate of clearance of goods - petitioner has made out prima facie case for waiver of the pre-deposit of the entire amount as a condition for hearing of the appeal before the Commissioner of Appeals and that the order to deposit 25% of the duty is not only against the strong prima facie case but will also in the facts and circumstances of the case cause serious prejudice to the petitioner - The order of the Commissioner (Appeals) dated 24.8.2012 directing the petitioner to deposit 25% duty as pre-deposit as condition of waiver is set aside. - full stay granted.
-
2013 (9) TMI 775 - ALLAHABAD HIGH COURT
Claim for Abatement of 11 Days - The claim was made by the respondent in terms of the provisions of Rule 10 of the Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010 – Held that:- The abatement claim was rejected by the original adjudicating authority on the ground that insamuch as the unit was closed for 11 days only in the month of December, the respondents do not fulfill the criteria laid down under Rule 10. However on appeal Commissioner (Appeals), by taking note of the fact that the unit was closed continuously from 21.12.2011 to 20.2.2012 the claim of abatement has to be allowed. On the other hand, it is Revenues contention that inasmuch as in the month of December, 2011 the unit was closed for a period less than 15 days, abatement cannot be allowed.
Relying upon Commissioner of Central Excise Lucknow vs. K.P. Pan Products (P) (Ltd) [2012 (11) TMI 723 - CESTAT, NEW DELHI] - Rule 10 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 - Rule 10 does state that a continuous period falling under different calendar month should be split into periods falling under each month and abatement determined separately - The Tribunal further observed that so long as days of closure are continuous, even if days fall in different calender month, it will constitute one continuous period.
Tribunal had not committed any error in upholding the order of the Commissioner (Appeals), Customs and Central Excise, NOIDA as the requirement of Rule 10 was for continuous period of 15 days - The Rule does not provide that the period should be confined to any calender month - The period of 15 days may fall within a month or more than one months, provided it was continuous and that the party complies with other conditions set out in Rule 10 of the Rules of 2008 - there was no questions of law as raised arise for consideration in the appeal - The Appellate Authority as well as the CESTAT have not committed any error of law in allowing respondent's claim for abatement - Decided against Revenue.
-
2013 (9) TMI 774 - PUNJAB & HARYANA HIGH COURT
Refund Claim - Return of remaining amount of sale proceeds - Entitlement to Interest - Whether the petitioner was entitled to interest on the amount and if so at what rate – Held that:- The excuse being made of the interim order acting as an impediment cannot be accepted for the reason that it restrained respondent from taking further proceedings which would imply that it could not have concluded the transaction, but nothing prevented it from cancelling the transaction and refunding the money to the petitioner having then found out that the property was under a cloud on account of prior mortgage and having made an assertion in the sale proclamation to the contrary – the petitioner was entitled to interest at least from the expiry 15 days of the notice by the petitioner to respondent calling upon respondent to either get the property cleared or refund the entire amount - Taking into consideration the prevailing rate of interest at the relevant time 12% per annum simple interest on the amount was granted – Decided in favour of Petitioner.
-
2013 (9) TMI 773 - ALLAHABAD HIGH COURT
Fixation of Annual Capacity - The issue was related to fixation of annual capacity of the production in terms of the Pan Masala Packing Machines (Capacity Determination and Collection) Rules, 2008 - Held that:- The machines were sealed and Revenue's submission was in the arena of assumption and presumption - For using the said machines, the seal had to be broke open which can only be done with the consent and permission of the Revenue - As such there was no merits in the Revenue's appeal.
The reasoning recorded by the CESTAT was upheld that once the machines were sealed and there was no evidence that the machines were de-sealed, without which they could not be used for manufacture, the imposition of the excise duty, only on the ground that since the machines had wheels and could be moved out, was based only on assumptions and presumptions - All the Central Excise Authorities had concurrently held that the dues were proposed to be imposed only on assumptions and presumptions - The questions of law as framed do not arise for consideration in this case – Decided against Revenue.
-
2013 (9) TMI 772 - PUNJAB & HARYANA HIGH COURT
Application for Condonation of Delay – Held that:- A perusal of the order would reveal that the application had been dismissed but without referring to reasons contained in the application for condonation of delay by referring to legality of consideration by the Committee of Commissioners u/s 35-E of the Act - The question whether consideration by the Committee of Commissioners was legal or valid, was a matter to be considered only after the application for condonation of delay was accepted as an appeal cannot be said to be properly constituted till delay was not condoned.
The judgments pressed into service by counsel for the respondent pertain to adjudication of an appeal on merits wherein, it was found, as a matter of fact, that consideration by the Committee of Commissioners was not in consonance with provisions of Section 35-E of the Act and therefore, dismissal of the appeal, by the Tribunal, was held to be valid and in accordance with law - The situation in the present appeal is entirely different as the question whether the appeal has been validly filed was not before the Tribunal - The controversy before the Tribunal was whether the appellant had shown sufficient cause for delay – there was no option but to allow the appeal, set aside the order and restore the application for condonation of delay to the Tribunal for adjudication afresh and in accordance with law within one month from the parties putting in appearance before it.
-
2013 (9) TMI 771 - ALLAHABAD HIGH COURT
Exemption on Duty under Rule 10 of Pan Masala Rules - The assessee claimed for exemption from payment of duty for the period the machine remained sealed i.e. 22-23 days, in terms of Rule 10 of Pan Masala Rules, 2008 but the same was denied – Whether the assessee was entitled for the exemption of the duty calculated for a period when the Machine was sealed by the department or not - Held that:- It was undisputed fact that the Machines were sealed and again it were unsealed and in each case, the sealing period was more than 15 days - There was nothing stated in Rule-10 to the effect that a continuous period falling under different calendar months should be split into period falling under each month and abatement determined separately - So long as the days of closure were continuous, even if the days fall in different calendar months it will constitute one continuous period and the abatement under Rule 10 was to be determined accordingly – there was no reason to interfere with the orders passed by the Tribunal – Decided against Revenue.
-
2013 (9) TMI 770 - GOVERNMENT OF INDIA
Revision Application u/s 35EE of CE Act, 1944 - Rebate Claim under Rule 18 of CE Rules, 2002 - Assessee was engaged in the manufacture of Hydraulic Press Machines falling under Chapter 84 of the Schedule to the Central Excise Tariff Act, 1985 - Held that:- Customs Officer at SEZ had certified on the ARE-I that goods have been admitted in full in the SEZ - The substantial benefit of rebate claims cannot be denied for only lapse of not filing Bill of Export which was a procedural lapse of technical nature as held by Hon’ble Supreme Court judgment in the case of UOI v. Suksha International & Nutan Gems [1989 (1) TMI 316 - SUPREME COURT ] and in Mangalore Chemicals and Fertilizers Ltd. v. DCCE [1991 (8) TMI 83 - SUPREME COURT OF INDIA] - the rebate claim was rightly held admissible in this case by Commissioner (Appeals) - applicant cannot be allowed to continue repeating the said lapse and keep on claiming rebate of duty paid on exported goods - If the said lapse was repeated the benefit of rebate under Rule 18 of Central Excise Rules, 2002 will be liable to be rejected
-
2013 (9) TMI 769 - GOVERNMENT OF INDIA
Rebate Claim under Rule 18 of the CE Rules - Assessee were engaged in the manufacturing and export of PR woven sack/bag – Held that:- The applicant have availed customs portion of All Industry Rate of Drawback when Cenvat facility had been availed, as evident from copies of Shipping Bills - Copies of Shipping Bills show that the applicant had claimed drawback @ 2.6% with value cap of Rs. 1.8/unit under the heading ‘Drawback under Cenvat facility had been availed’ - the applicant had recovered all the input stage taxes in the form of Cenvat credit for excise portion and Drawback of customs portion - But the applicant was claiming rebate of duty paid on final finished product.
The statutory provision makes it quite clear that benefit of Drawback and input stage rebate, both were not available simultaneously - the applicant claiming rebate of duty paid on finished goods and not on inputs and hence, their claim was not hit by limitation provided in Chapter 8 Part V of C.B.E. & C. Manual of Supplementary Instruction - As such, these rebate claims cannot be denied on this ground also – Order set aside – Decided in favour of Assessee.
-
2013 (9) TMI 727 - COMMISSIONER OF CENTRAL EXCISE (APPEALS), CHENNAI
Rebate Claim under Rule 18 of the CE Rules 2002 - whether process of repacking is a manufacturing activity - Mosquito Repellant Liquid - Whether denial of rebate of duty paid on the goods exported was correct - Held that:- The goods were exported as combi-packs - Section 2(f)(iii) states that manufacture includes any process in relation to the goods specified in third schedule involves packing - There was force in the appellant’s argument that as the said goods were repacked in combi-packs, it amounts to manufacture and they were eligible for rebate - Moreover, in the case of Om Sons Cookware P. Ltd. [2011 (1) TMI 814 - GOVERNMENT OF INDIA ] Rebate/drawback were Export Oriented Schemes and unduly restricted and technical interpretation of procedure to be avoided - Liberal interpretation should be given when substantive fact of export was not doubted - Further, it was policy of the Government that the domestic duty shall not be exported - In short, whatever duty was paid by the exporter had to be paid back so as to encourage them - the appellant was eligible for rebate – order set aside 0 Decided in favour of Assessee.
........
|
