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Central Excise - Case Laws
Showing 21 to 40 of 302 Records
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2014 (1) TMI 1698
Validity of appeal - time barred - Held that:- The criticism advanced by Mr. Bharadwaj that the statutory appeal was not preferred within the prescribed time deliberately is not altogether without any merit. The writ petitioner could have with the exercise of due diligence ascertained the order passed by the Joint Commissioner. It is also a fact that the appeal was preferred after 467 days whereas the statutory Appellate Authority has power to condone delay of only 30 days. Therefore, the Appellate Authority could not have entertained the appeal in any event.
The tendency to approach the High Court without exhausting the remedy before the statutory authorities cannot be encouraged. We, however, refrain from deciding the issue in this case finally because Mr. Khaitan has, after taking instructions, agreed to put in a further sum of ₹ 25,00,000/- within three months from date. A sum of ₹ 10,00,000/- has already been put in by his client.
In the event a further sum of ₹ 25,00,000/- is deposited within three months from date, the matter shall be reconsidered by the Joint Commissioner as per the order passed by the learned Trial Court. In the event such deposit is not made within the time stipulated herein, the order passed by the learned Trial Court shall stand set aside.
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2014 (1) TMI 1679
Academic issue raised in the appeal - Ld. Counsel does not explain whether the issue involved in the appeal has affected the interest of appellant. For no reply, we do not consider the appeal to be disposed for academic exercise since the Tribunal is not Advance Ruling Authority. Accordingly, appeal is dismissed.
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2014 (1) TMI 1677
Condonation of delay - Held that:- Appellants had received the Order in Original on or around 15.10.2012 but had not filed the appeal within time and there is a delay of 100 days in filing the appeal. The justification given by the appellants / applicants seems to be that the peon who received the Order in Original did not hand it over to the Managing Director and handed over the same belatedly and the Managing Director was suffering from Diabetes, Hypertension, and other old age related diseases and hence could not attend to the same. We find no evidence in support of such a claims made in the application nor there is any affidavit in support of such a claim. In the absence of any evidence to justify the delay in filing the appeal before the bench, we are unable to accept the grounds taken in the application for condonation of delay - Condonation denied.
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2014 (1) TMI 1668
Confiscation of goods - Violation of Notification 13/81-Cus., dated 9-2-1981 - Held that:- The Assessee was 100% EOU and was granted exemption from excise duty under Notification 13/81-Cus., dated 9-2-1981. The Tribunal allowed the appeal of the Assessee on the ground that there is no allegation of violation of conditions of the notification. - Neither the notification has been produced before us nor it has been pointed out that which condition of the notification has been violated. - Decided against Revenue.
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2014 (1) TMI 1651
CENVAT Credit - Credit on Steel Plates, Sheets etc. used for repair and maintenance - Held that:- It is quite clear that when HR Steel Sheets, Plates etc. are used for repair and maintenance within the factory they would be eligible for credit. In this case there is an added factor to support the eligibility for the credit in the sense that the same have been used for repair and maintenance of storage tank which is specifically covered under the definition of 'capital goods'. - Decision in the case of Cement Corporation of India v. CCE [2014 (3) TMI 346 - CESTAT BANGALORE] - Decided in favour of assessee.
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2014 (1) TMI 1650
Penalty u/s 11AC - Option to pay 25% penalty - CENVAT Credit - Suppression of facts - Held that:- Since the appellant had availed the Cenvat credit even on the value of the inputs not received, therefore, they had reversed the proportionate credit, attributable to goods not received, on being pointed out by the visiting audit party. From the facts, I find that the appellant had received the insurance claim for short receipt of the goods in their factory, but availed Cenvat credit on the total quantity of the inputs, as shown in the Bill of Entry. So while availing the credit, there might not be irregularity, but continuation of the credit in their books of accounts after filing the insurance claim with the authorities, become irregular, as they knew that the entire quantity of the inputs were not received in their factory. Also, from the records, it is evident that the appellant had availed the insurance claim on the total value of shortage quantity including the CVD amount. Thus, there is an element of suppression in the continuation of credit in their books of accounts, after availing the insurance claim. - Consequently, the imposition of penalty under Section 11AC of the Central Excise Act, 1944 is thus sustainable. - impugned order is set aside to the extent of not allowing the appellant to exercise the option to pay 25% of penalty, as prescribed under Section 11AC of the Central Excise Act, 1944. - Decided partly in favour of assessee.
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2014 (1) TMI 1649
Marketability of optical transmission equipment - Valuation of goods – Cost construction method OR value of comparable goods - Clandestine removal of goods - Extended period of limitation - Supreme Court after hearing the appeal dismissed the appeal filed by the assessee against the decision of Tribunal [2013 (11) TMI 1415 - CESTAT CHENNAI], wherein Tribunal held that For goods to be marketable it is not necessary that goods in question should be generally available in the market - Marketability does not depend upon the number of purchasers - The goods cleared without payment of duty for which duty is now demanded cannot be considered as goods cleared to other units of the appellant for further manufacture of other excisable goods - Excise liability does not depend on realisation of money but on manufacture and removal - the appellant has been freely removing goods under the pretext of testing to be done, replacement of defective pieces etc. without payment of duty and proper accounting of the goods after testing etc. – thus in the case of short shipment also this is only a method adopted for clandestine removal and not cases of genuine supplies to make good short shipments.
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2014 (1) TMI 1647
Duty demand - Suppression of facts - Invocation of extended period of limitation - Whether the claim of the Department is barred by limitation, since the period started from 28-1-1997 to 31-3-1997 - Held that:- If there is no suppression of facts on the part of the assessee, the normal period of limitation for making claim of Central Excise duty is six months and if there is suppression of facts, the period of six months would extend to five years. - appellant/assessee has duly intimated the process of job work received from M/s. Raghavendra Spinners Limited, Tirunelveli. The only contention putforth on the side of the Department is that even though the assesses has fairly conceded that it has received job work from M/s. Raghavendra Spinners Limited, Tirunelveli it failed to intimate either brand name or trade name. In order to answer befittingly, the learned counsel appearing for the appellant/assessee has drawn the attention of the Court to the decision referred to earlier, wherein it has been clearly mentioned that failure to mention classification as supplied by assessee does not come within the purview of suppression of facts. Therefore, it is quite clear that there is no suppression of facts on the part of the appellant/assessee in respect of job work done by it during the relevant period mentioned in the show cause notice.
The claim in question has been made for the period started from 28-1-1997 to 30-3-1997 and show cause notice has been given on 3-8-1998. Even from 31-3-1997, no show cause notice has been given within a period of six months. Under the said circumstances, the demand made through show cause notice, dated 3-8-1998 is clearly barred by limitation. Since the claim made through show cause notice, dated 3-8-1998 is barred by limitation, it is needless to say that the order passed by the CESTAT is liable to be set aside and the order passed by the Commissioner of Central Excise (Appeals), Tiruchirapalli is liable to be restored. - Decided in favour of assessee.
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2014 (1) TMI 1646
Availment of CENVAT Credit - Non payment of excise duty - Held that:- As per Section 73 sub-section (2) of the Finance Act, 2010 the assessee has to make an application to the Commissioner of Central Excise along with documentary evidence and a Certificate from the Chartered Accountant or a Cost Accountant, certifying the amount of input credit attributable to the inputs used in or in relation to the manufacture of exempted goods within a period of six months from the date on which the Finance Bill, 2010 received the assent of the President. - assessee had reversed the credit even prior to the amendment and the order of the Tribunal is in fact no different from what is contemplated under the Finance Act, 2010 - Decided against Revenue.
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2014 (1) TMI 1645
Modification of order - Whether the previous Orders-in-Original in case of M/s. Natani Rolling Mills Pvt. Ltd. and in case of Shiv Prasad Rolling Mills Pvt. Ltd., passed by the Commissioner of Central Excise, Jaipur by which he dropped the duty demands against them can be the basis for modification of the stay order dated 23-10-2013 passed in the case against the appellant company and its Director - Held that:- Just because the Commissioner in December, 2012 in cases of M/s. Natani Rolling Mills Pvt. Ltd. and M/s. Shiv Prasad Rolling Mills Pvt. Ltd. has dropped the proceedings against them, this cannot be the justification for modification of the stay order dated 23-10-2012, as it is not known as to whether the facts of the case against the appellants and the facts of the cases against M/s. Natani Rolling Mills Pvt. Ltd. and M/s. Shiv Prasad Rolling Mills Pvt. Ltd. are identical
Though the impugned Order-in-Original in case of the Appellant company and the Orders-in-Original in the cases against M/s. Natani Rolling Mills and M/s. Shiv Prasad Rolling Mills have been passed by the same Commissioner i.e. CCE, Jaipur-I, it is not known as to whether the facts of the case against the Appellant Company and the facts of the cases against M/s. Natani Rolling Mills and M/s. Shiv Prasad Rolling Mills are identical, as it is not known as to whether the fact of unexplained wide fluctuation in power consumption per MT from month to month - there in the cases against M/s. Natani Rolling Mills and M/s. Shiv Prasad Rolling Mills, which have been dropped by the Commissioner. In any case, the Commissioner’s orders in the cases against M/s. Natani Rolling Mills and M/s. Shiv Prasad Mills have been challenged by the Department before the Tribunal and the Commissioner findings on the points of facts and points of law involved in these cases cannot be said to be final.
The dropping of cases by the Commissioner against M/s. Natani Rolling Mills and M/s. Shiv Prasad Rolling Mills are not the developments which change the balance of convenience, as, as explained in para 24 above, the facts of the present case may not be identical to the facts of the cases against M/s. Natani Rolling Mills and M/s. Shiv Prasad Rolling Mills, and even if the facts are identical, it cannot be said at this stage that the Commissioner’s orders dropping the proceedings against M/s. Natani Rolling Mills and M/s. Shiv Prasad Rolling Mills are correct. Thus the judgment of Hon’ble Bombay High Court in case of M/s. Sarla Performance Fibers (2008 (2) TMI 68 - HIGH COURT BOMBAY) is not applicable for the facts of this case. - Modification denied.
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2014 (1) TMI 1642
Valuation of goods - Classification of goods - Valuation u/s 4 or 4A - Difference of opinion - Majority order - Whether the appellants are required to affix MRP on their product as per the provisions of Standards of Weights and Measures (Packaged Commodities) Rules, 1977 or not - Held that:- As the decision of the Hon’ble High Court of Bombay in the case of Larsen & Toubro Ltd. (2008 (2) TMI 645 - HIGH COURT BOMBAY) has not been set aside by the Hon’ble Apex Court. Therefore in the light of the judgment in the case of Shri Chamundi Mopeds Ltd. [1992 (4) TMI 183 - SUPREME COURT OF INDIA] the judgment of the Hon’ble High Court of Bombay in the case of Larsen & Toubro Ltd. (2008 (2) TMI 645 - HIGH COURT BOMBAY) is a law of land as on today. Therefore, we hold that the appellants are required to affix MRP on the impugned goods.
Whether the list price with suitable adjustment for VAT and local taxes can be accepted as an accurate and reasonable substitute for the MRP - Held that:- A careful examination of the provisions of sub-section (2) reveals that two conditions are required to be satisfied for application of Section 4A. The first condition is that there should be a requirement under the Standards of Weights and Measures Act, 1976 or the Rules made thereunder or under any other law for the time being in force to declare the RSP on the packages of the goods. The second condition is that the goods should be notified under sub-section (1) of Section 4A. If these two conditions are satisfied, then notwithstanding anything contained in Section 4, the value for the purpose of assessment of duty will be the retail sale price minus the amount of abatement, if any, as specified by the Central Government.
Therefore, once the goods are specified under Section 4A(1) and there is a statutory requirement to declare RSP on the retail sale packages of the goods, the question of application of Section 4 would not arise at all. In the present case, there is no dispute on the fact that on the retail packages the appellant-manufacturers were required to declare the RSPs and the goods were also notified under the provisions of Section 4A(1). If that be so, it cannot be contended that the valuation of the goods have to be done under Section 4 of the Act and not under Section 4A. Thus, there is a contradiction in the findings and conclusions drawn by the learned Member (Judicial) that prior to 1-3-2008 the goods were liable to be assessed for excise duty purposes under Section 4 of the Act and not under Section 4A.
Whether for the period prior to 1-3-2008, the maximum retail price of the impugned goods can be determined by the assessing officer using reasonable/best judgment method based on the materials available and consistent with the provisions of Section 4A of the Central Excise Act, 1944, in the absence of a machinery provision available for determination of the MRP of the product - Held that:- Central Government acquired the powers to ascertain in the prescribed manner the retail sale price of such goods and the retail sale price so ascertained shall be deemed to be retail sale price for the purpose of the Section vide Finance Act, 2003 which substituted sub-section (4) of Section 4A. The rules were notified only w.e.f. 1-3-2008. The question is, prior to 1-3-2008 whether the provisions of the said Rules could be applied for determination of RSP using the best judgment method - If one carefully goes through the provisions of Section 4A and the Rules, 2008 cited above, it can be seen that there is no determination of RSP envisaged in the legal provisions. The declaration of RSP is mandated by the provisions of the Packaged Commodities Rules and the Standards of Weights and Measures Act and RSP by definition is the maximum price at which the excisable goods in packaged form may be sold to the ultimate consumer and includes all taxes, local or otherwise, freight, transport charges, commission payable to dealers, all charges towards advertisement, delivery, packing, forwarding and the like and the price is the sole consideration for such sale. Neither the Standards of Weights and Measures Act nor the Rules made thereunder provides for determination of RSP. It merely defines what RSP is. Since the declaration of RSP is mandated by the Standards of Weights and Measures Act or the Rules made thereunder, Excise law cannot prescribe a method for determination of RSP since the declaration of RSP is not mandated by the Central Excise law. Therefore, what is provided under the Central Excise law is only the ascertainment of the RSP as against determination of RSP.
In the present case, the charging section is Section 3 of the Central Excise Act and the rate of tax is prescribed in the Schedule to the Central Excise Tariff Act, 1985. The value for the purpose of assessment is the retail sale price as defined in the Explanation 1 to Section 4A of the Act. Thus, the taxable event, the rate of tax, the measure of the tax and the person liable to pay tax are separately provided for in the various provisions of the Central Excise Act, 1944 and the Rules made thereunder. Rules, 2008 apply only to a limited situation where the manufacturer fails to declare the RSP or tampers with or obliterates the RSP already declared. Therefore, the provisions are merely procedural and directory in nature and hence has retrospective operation. - charging section provides for the levy, the rate of tax is specified in the schedule, the person liable to pay the tax is the manufacturer of the goods under Rule 4 of the Central Excise Rules, 2002 and the measure of tax is defined under Section 4A. Thus, all the core ingredients of the tax system is specified in the law. The Rules 2008 merely provides for ascertainment of the measure of tax in a situation where it is not declared.
There is absolutely no doubt that the MRP of the product can be ascertained by the assessing officer using reasonable/best judgment means based on the material available and consistent with the principles and the provisions of Section 4A of the Central Excise Act, 1944 even if rules for ascertainment of the same were not framed earlier and came about later - excise levy on the impugned goods is not on the transaction value but is on retail sale price. The appellant has circulated list price to their stockists which is exclusive of local taxes and octroi. The stockists cannot sell the goods at a price higher than those mentioned in the list price. This is explicitly mentioned in the list price itself. Revenue has adopted the list price with suitable adjustment for including the sales tax/VAT and octroi elements and from such value abatement has been given for arriving at the assessable value.
In the absence of any such evidence, the additions made by the Revenue to the list price towards local taxes cannot be faulted at all so long as the reasonableness of the additions has not been rebutted by the appellants either before the adjudicating authority or before this Tribunal. Therefore, I do not find any infirmity in the determination of RSP of the goods manufactured by the appellants by adopting their list price and adding thereto the VAT/sales tax and octroi elements.
From the facts available on record it is seen that the appellants were aware that they were required to declare RSP on the packages of the goods manufactured and sold by them. They were so advised by the Director of Legal Metrology as early as in 2002. However, in spite of being aware of their legal obligations, the appellants did not comply with the statutory directions. After a gap of five years they challenged the decision of the Director, Legal Metrology before the Hon’ble Bombay High Court and the Bombay High Court directed the Director, Legal Metrology to pass a speaking order which the Director, Legal Metrology has done in 2007. - Thus, the appellants were fully aware of the legal requirements. In spite of such knowledge, the appellant chose not to comply with the law in complete defiance of the law. There was no reason for the appellant to entertain any reasonable belief that they were not required to declare the RSP on the packages. The question is when an appellant deliberately defies a statutory requirement, can they be allowed to get away with it and obtain the benefit under some other law.
Appellant have deliberately contravened the provisions of Standards of Weights and Measures Act and the Packaged Commodities Rules made thereunder. Therefore, they have to suffer the consequences of the contraventions. For such contraventions the appellant cannot claim benefits under the provisions of Central Excise Act by holding that the appellant was not liable to discharge excise duty under Section 4A of the Central Excise Act. In the present case, a deliberate contravention of the Standards of Weights and Measures Act in utter disregard to the law was also a contravention under the provisions of Central Excise Act and these contraventions had been committed by the appellant with an intention to evade payment of legitimate Central Excise duty. In these circumstances, the invocation of extended period of time is completely justified and, therefore, the main demands made invoking the extended period of time is clearly sustainable.
The appellants also resorted to subterfuge by making misdeclarations on the packages that they are meant for industrial consumers and not for retail sale. There was no exemption under Rule 34 of the PCR from declaration of MRP even if the goods were meant for industrial or institutional customers, if they were sold by numbers and displayed for sale by the stockists and retailers. The appellants’ agreements with the stockists required the latter to display these goods for sale and the stockists have also confirmed this fact in their statements given before the investigating authorities. There is also no dispute that the appellants’ goods are sold by numbers. Thus to circumvent the law, the appellants resorted to misdeclarations, which clearly reveals their guilty mind. Thus the charge of suppression of facts and wilful misstatement of facts with an intent to evade excise duty is writ large and established beyond doubt. In such circumstances, invocation of extended period of time for demand of duty is completely justified - Decided against assessee.
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2014 (1) TMI 1572
Rejection of rebate claim of Automobile Cess - Claim rejected on the basis of C.B.E. & C. clarification issued vide F. No. 262/01/2007-CX-8, dated 20-3-2007 - Notification No. 19/2004-C.E. (N.T.) - violation of provision of condition No. 2(b) of Notification No. 19/2004-C.E. (N.T.) - Held that:- Government observes that rebate of duty paid on exported goods is to be allowed as per statutory provision contained in the Rules 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. The duties to be rebated are specified in Explanation-I of Notification No. 19/2004-C.E. (N.T.) - Similar provision has been made under Section 94 in respect of Education Cess collected as part of customs Duty and under Section 95 Education Cess levied and collected as part of Service Tax. In other words, levy of surcharge under Sections 93, 94 and 95 on respective taxes was the levy for the purpose of Union and was to be utilised by the Union to fulfil the commitment of the Central Government to provide and finance universalised quality of basic education, as has been given out under Section 91 of the Act.
The very fact that the surcharge is collected as part of levy under three different enactments goes to show that scheme of levy of Education Cess was by way of collecting special funds for the purpose of Government project towards providing and financing universalised quality of basic education by enhancing the burden of Central Excise Duty, Customs Duty, and Service Tax by way of charging surcharge to be collected for the purpose of Union. But, it was made clear that in respect of all the three taxes, the surcharge collected along with the tax will bear the same character of respective taxes to which surcharge was appended and was to be governed by the respective enactments under which Education Cess in the form of surcharge is levied & collected.
The Section 93 specifically says that Education Cess levied under Section 91 shall be a duty of excise. Section 91 also stipulates that these shall be levied and collected as surcharge, a cess to be called Education Cess. Hon’ble High Court observed that it was made clear that in respect of these taxes the surcharge collected along with tax will bear the same character of respective taxes to which surcharge was appended and was to be governed by respective enactments under which Education Cess in the form of surcharge is levied and collected. Hon’ble High Court has finally allowed the writ petition and allowed the rebate of surcharge on excise duty appropriated by Union of India as Education Cess for funding universalised quality of basic Education Programme. However, Government notes that the Automobile Cess is not levied and collected as surcharge and also there are no parallel provisions with reference to Automobile Cess as contained in Sections 91, 92 and 93 of Finance Act, 2004. Moreover the Automobile Cess is levied and collected in terms of Notification No. S.O. 247(E), dated 22-3-1990 and not under Central Excise Act, 1944.
Rebate of Automobile Cess levied and collected under Automobile Cess Rules, 1984 and S.O. No. 247(E), dated 22-3-1990 is not admissible under Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004.
Provisions of Para 1(iii) of the Part I of Chapter 8 of Supplementary Instructions, 2005 and condition 2(b) of Notification No. 19/2004-C.E. (N.T.) stipulate that excisable goods shall be exported within six months from the date on which they were cleared for export from the factory of manufacture or warehouse. In this case initially goods were not cleared for export but it was a stock transfer to their own unit at Hosur on payment of duty. Since the goods are exported from Hosur unit on ARE-1/Invoice, the said goods are cleared for export on the date of preparation of ARE-1 at Hosur unit. Since the goods are exported within six months of their clearance from Hosur unit (date of ARE-1/invoices), the allegation of violation of condition 2(b) of the Notification No. 19/2004-C.E. (N.T.) does not survive and hence, rebate claims cannot be disallowed on this count - Decided partly in favour of assessee.
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2014 (1) TMI 1571
Waiver of pre-deposit of duty and equivalent penalty - petitioner is manufacturing the chassis of the motor vehicles and getting the body built on the chassis from other parties - Payment of the excise duties on the manufactured body of the said vehicle - Duty to be paid by builders - Held that:- petitioner is the manufacturer of the motor vehicle chassis and they sale the chassis of the vehicle on the payment of appropriate excise duty, for which M/s. Tata Motors entered into an agreement with various body builders of the vehicle to pay the duty of the vehicle on the manufactured chassis - merely establishing of a prima facie case, interim order of protection should not be passed. But, if on a cursory glance, it appears that the demand raised has no leg to stand on and it would be undesirable to require the assessee to pay full or substantive part of the demand.
Petition for stay should not be disposed of in a routine manner unmindful of the consequences flowing from the order requiring the assessee to deposit full or part of the demand and then held that there can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved - hardship to be “undue” it must be shown that the particular burden to observe or perform the requirement is out of proportion to the nature of the requirement itself and the benefit, which the applicant would derive from compliance with it. The word “undue” adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant.
Where the petitioner itself knowing about the interim order dated 25-3-2011 passed in its own case and did not just choose to rely upon the said interim order before the Tribunal and invited a detailed order on merits, wherein, in fact the case has been considered on the facts of the case in hand, of the writ petitioner, which is not the position in the order dated 25-3-2011, then no interference is required. However, it is necessary to maintain the judicial discipline by following even the interim order, which has been passed but earlier order had different fat situation, wherein that aspect of the matter has not been taken into consideration and different view also can be taken here in this case. If the Tribunal was not made aware of the order dated 25-3-2011, at the cost of repetition, we would like to observe that the reasons given in the order dated 21-12-2011 are quite different and distinct reasons, which are not be available in the order dated 25-3-2011 - However, Six weeks time is granted for depositing the requisite amount before the Tribunal - Decided against assessee.
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2014 (1) TMI 1570
Cenvat credit availed in favour of naphtha used for the generation of electricity and supplied to their units - Application of Rule 57C - Held that:- assessee used furnace oil in the generation of steam. A part of the steam was transferred to a unit situated outside their factory. Though there is no dispute about the inputs, the fact remains that the steam generated was not used within the factory of production. It is not the case of the assessee that M/s. Futura Industries Limited is a 100% export oriented unit. Rule 57C allows credit of duty in respect of export oriented undertakings. When there is a specific entry in a rule and the said entry pre-supposes that for the purpose of eligibility of credit of duty of inputs, those inputs must be used for manufacture of final products or for any other purpose within the factor of production, the assessee cannot take shelter under a different entry. Admittedly, the assessee has used furnace oil in the generation of steam and the said steam was transferred altogether to a different unit situated outside the factory premises. Therefore, the case of the assessee would come under Rule 57B(1)(iv) - Rule 57C(1)(ii) has to be decided by the CESTAT on merits - The matter is remanded to the CESTAT for consideration regarding the eligibility to claim credit on the basis of Rule 57C(1)(ii) - Decided in favour of Revenue.
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2014 (1) TMI 1569
Waiver of pre deposit - Commissioner dismissed on the ground of delay - Held that:- Commissioner has not discussed the merit of the case but dismissed the appeal on the ground of delay of two days in filing the appeal before him. From the submission of the Ld. Advocate, prima facie we find that if due date was Saturday, and the appeal was filed on Monday then there was no delay. However, these facts are need to be scrutinized and verified - Matter remanded back - Decided in favour of assessee.
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2014 (1) TMI 1568
Duty demand - show cause notice was issued to the respondents on the ground that the respondents are engaged in the manufacture of office furniture system falling under Chapter Heading 9403 of the Tariff - Commissioner (Appeals) set aside the demand on the ground that the respondents were only assembling the duty paid parts of the furniture as the furniture was manufactured by M/s. Kemp & Co. - Held that:- there is no allegation in the show cause notice that the respondents were not receiving all the parts of the furniture. In fact the manufacturer has paid duty under Chapter Heading 9403 of the Tariff which covers ‘other furniture'. The furniture manufactured was cleared in CKD condition for ease of transportation and the respondents were only assembling the parts of the furniture at site. In view of this we find no infirmity in the impugned order - Decided against Revenue.
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2014 (1) TMI 1567
Denial of CENVAT Credit - Credit on return clearances to Shipping Corporation of Karwar of Electrostatic Liquid Cleaner - Credit taken when goods were not in factory - Held that:- Goods have been returned back to the appellant although after a gap of 3 days and same has been cleared on payment of duty. Therefore, the only lapse on the appellant is that they have not followed the proper procedure. For not following the proper procedure, credit cannot be denied. Accordingly, I hold that the appellant are entitled to credit as said goods have been cleared on payment of duty. Therefore, impugned order for denial of CENVAT credit is set aside to the extent only - Decided in favour of assessee.
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2014 (1) TMI 1566
Goods Transport Agency Service - Availment of CENVAT Credit - Held that:- On Goods Transport Agency Service which was availed by the appellant, service tax has been paid, and appellant has taken the credit of the service tax paid. It is immaterial who has paid the service tax. Ld. Commissioner (Appeals) has failed to appreciate the fact that the service has suffered service tax and any payment towards duty or service is entitled for input service credit/input credit. Therefore, the finding of the lower authorities that in the case of Goods Transport Agency Service, service tax is required to be paid by the service recipient is not tenable - Decided in favour of assessee.
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2014 (1) TMI 1565
Valuation of goods - Duty on promotional pack and trade pack - Demand of differential duty - Penalty u/s 11AC - Imposition of redemption fine - Held that:- to constitute a combination package it should be a package containing dissimilar commodities. In the present case, it is an undisputed fact that the trade packs and the promotional packs are packed separately and they are not packed in a single package. They are also dispatched to the dealers and the retailers separately. Therefore, it is difficult to accept the contention of the appellant that they constitute a combination package. The very conduct of the appellant in not packing them together and discharging excise duty separately on both of them, i.e., under Section 4A of the Central Excise Act in respect of the trade pack and under Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 in respect of promotional pack clearly shows that the appellant themselves did not treat them as a combination package.
The promotional pack is also a cosmetic product classifiable under Chapter 33 of the Central Excise Tariff and there is no dispute in this regard. Merely because the same is supplied free-of-cost, it does not obliterate the liability to pay excise duty of the promotional pack. It is a well settled position in law that excise duty is on manufacture and not on sale of the goods. Therefore, irrespective of the fact whether the goods are sold or otherwise dispose of, liability to excise duty is attracted, the moment the goods are manufactured. Therefore, notwithstanding the fact that the promotional packs are given free, they are liable to excise duty - notwithstanding the non-availability of the normal sale price under Section 4(1)(a) of the Act, by reason of the goods being specified under Section 4A(1) making the retail sale price i.e. MRP as its deemed value, the appropriate rule governing the valuation of physician's samples would continue to be rule 4.
Appellant cannot take the plea that they become aware of the correct position of law only in 2008 which does not stand to any reason. Since the legal position was settled way back in 2006 itself, the appellant could not have entertained any bona fide belief with regard to their liability to discharge excise duty under Rule 4 read with Rule 11. This is all the more so when the appellant company's advocate Mr. Karl Shroff has also advised that duty liability has to be discharged in terms of Board's Circular dated 25/04/2005 as admitted by Shri Shailendra Goel in his statement before the investigating agency. Thus, the alibi of bona fide belief fails flat on its face - When the law stipulates imposition of mandatory penalty on account of suppression of facts, the same cannot be set aside or waived.
The goods were seized and thereafter they were released on execution of bond/bank guarantee. Therefore, the decision to confiscate the goods and imposition of fine in lieu thereof is correct in law - Decided against assessee.
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2014 (1) TMI 1564
Refund of pre-deposit amount - unjust enrichment - Commissioner (Appeals) has held that for pre-deposit made by the assessee is not hit by the bar of unjust enrichment - Held that:- Respondent has paid the disputed amount at the time of consideration of their appeal before he Commissioner (Appeals) as pre-deposit and as per Section 11B of the Central Excise Act, 1944 bar of unjust enrichment is applicable to the duty paid by the assessee only. Admittedly, the stay amount paid by the respondent at the time of considering of their stay application is not the duty. It is only for consideration of their appeal. Therefore, provisions of Section 11B of the Central Excise Act, 1944 are not applicable to the facts of the case - Therefore bar of unjust enrichment is not applicable - Following decision of Suvidhe Ltd. vs. UOI [1996 (2) TMI 136 - HIGH COURT OF JUDICATURE AT BOMBAY] - Decided against Revenue.
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