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Central Excise - Case Laws
Showing 41 to 60 of 302 Records
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2014 (1) TMI 1563
Penalty u/s 11AC - Under valuation of goods - Appellants had cleared two consignments under the same serial number of the invoice and accounted for only one consignment in respect of each invoice - Held that:- ingredients contemplated for imposition of mandatory penalty under Section 11AC are in existence and therefore prima facie penalty under Rule 25 of Central Excise Rules could have been imposed.
Total duty involved may be around Rs.13 lakhs on the goods and redemption fine of more than Rs.21.65 lakhs has been imposed for redeeming the goods, in my opinion, if the appellant deposits an amount of Rs.2/- lakhs that should be sufficient as pre-deposit for the Commissioner (A) to hear the appeal - Commissioner (A) is requested to hear the appeal and decide the issue on merits after noting compliance with the requirement of pre-deposit - Decided against assessee.
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2014 (1) TMI 1561
Rejection of rebate claim - Rule 18 - Notification No. 19/2004-C.E. (N.T.), dated September 6, 2004 - Period of limitation of 6 months - Held that:- On a reading of the Notification No. 40/2001 there is nothing to show that the time stipulation cannot be extended retrospectively, after the export, having regard to the facts of a particular case. The benefit of drawback has, in numerous case, been allowed notwithstanding the delay in export. This in itself shows that the respondent authorities have proceeded on the basis that the time stipulation of six months is not inflexible and the time stipulation can be condoned even at the time of consideration of an application for refund/drawback - When there is proof of export, the time stipulation of six months to carry out export should not be construed within pedantic rigidity. In this case, the delay is only of about two months. The Commissioner should have considered the reasons for the delay in a liberal manner.
It would perhaps be pertinent to note that an exporter does not ordinarily stand to gain by delaying export. Compelling reasons such as delay in finalization and confirmation of export orders, cancellation of export orders and the time consumed in securing export orders/fresh export orders delay exports - What is important is, the reason for delay. Even after export extension of time may be granted on the same considerations on which a prior application for extension of time to carry out export is allowed. If there is sufficient cause for the delay, the delay will have to be condoned, and the time for export will have to be extended. In my view, in considering the causes of delay, the Commissioner would have to take a liberal approach keeping in mind the object of the duty exemption, which is encouragement of exports - The impugned revisional order is set aside and quashed - Decided in favour of assessee.
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2014 (1) TMI 1521
Waiver of pre deposit - Whether the Hon'ble Tribunal was justified in demanding Rs. One lac in compliance of section 35F of the Central Excise Act 1944 on the Application pending before the Commissioner (Appeals) specially when the Commissioner (Appeals) had dispensed with the condition of predeposit prior to remand - Held that:- appellant had an order of dispensation of pre-deposit of the amount in its favour during the pendency of the proceedings before the Commissioner (Appeals). The Tribunal found it appropriate to remand the proceedings back to the Commissioner (Appeals) for reconsideration. Save and except recording the submission of the revenue that a direction for deposit should be made, the Tribunal has not furnished any independent ground for modifying the position which obtained during the pendency of the proceedings before the Commissioner (Appeals). Hence, though the Tribunal undoubtedly did have the power under Section 35-C to issue an appropriate direction while remanding the proceedings, no reason has been furnished by the Tribunal for ordering the deposit - Commissioner (Appeals) directed to decides the appeal on merits - Decided party in favour of assessee.
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2014 (1) TMI 1520
Availment of CENVAT Credit - Area of the factory as well as the consumption of electricity does not suggest manufacturing of the final products, as shown by the petitioner, for which CENVAT Credit is availed - Non compliance of pre deposit order - Held that:- There is no quarrel to the proposition that it is within the discretionary powers of the Tribunal to grant total waiver of the duty demanded and the penalty levied provided it records the reasons relating to undue hardship of the applicant as well as safeguard the interest of the revenues. If the decision of the Tribunal is accepted by the department in some other cases and have been uniformly applied, taking a different view, without indicating the factual difference and/or the special facts may lead to unsettle the settled proposition.
From the show cause notice as well as the finding made by the Tribunal it would be evident that the authorities found that there is existence of a factory with plants and machinery. What is stated by the department is that the aforesaid plants, machinery and other infrastructure cannot support the manufacturing activities to such a large extent as has been shown by the petitioner to have been done during the relevant period. Therefore, in view of the aforesaid facts, this Court does not find that it could at all be said that there was never any manufacturing activities undertaken by the petitioner in the said factory but leads to presumption that some manufacturing activities have been undertaken and in absence of any cogent and counter evidence it would further lead to a presumption that the closure was made, as has been contended by the petitioner - approach of the Tribunal, in dealing with the application for waiver of the pre-condition deposit, is not at all appreciable. This Court, therefore, quashes and sets aside the order dated 24th February 2012. Since the second order dated 15th May 2012 is dependent upon the order dated 24th February 2012, the same cannot stand independently and is also accordingly quashed and set aside - Decided in favour of assessee.
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2014 (1) TMI 1519
Insertion of Explanation in the notification - Whether Retrospective of Prospective - Whether Clarificatory or declaratory - Whether the Tribunal is right in holding that the Explanation to Notifications 16/97CE dated 1.4.97 and 38/97 dated 27.6.97 would have prospective effect, in spite of settled position of law that any Explanation to a Rule or Section is only clarificatory in nature and would have retrospective effect - Held that:- inputs as well as the finished goods manufactured by the assessee answer the description of the 'specified goods' - for the purposes of computing the aggregate value of clearances under the notification, the clearances of excisable goods which are chargeable to 'nil' rate of duty or which are exempted from the whole of duty of excise leviable thereon by any notification issued under sub-rule (1) of Rule 8 of the Rules shall not be taken into consideration. In this case, as the finished goods are, admittedly, exempted under Notification Nos.155/1986, 160/1986 and 124/1988, the value of the exempted finished goods will have to be excluded in arriving at the aggregate value for the purposes of the notification.
Rationale behind the insertion is that when the specified goods are chargeable to nil rate of duty or exempted under any notification, as the case may be, the specified goods used as inputs are not treated as exempt under clause (c) of Paragraph 3, in which event, they should form part of the aggregate value of clearance. Thus the question of further relief being granted by excluding the inputs from the aggregate value was sought to be set right, so that the notification prescribing the slabs would be more meaningful, but till such time such insertion was made and in the absence of any specific provision restricting the scope on the specified goods with reference to their chargeability to nil rate of duty or exempt from the whole of duty under any other notification, paragraph 3, as it existed during the relevant point of time, cannot, in any manner, be read down - notification No.69 of 1997 dated 03.12.1997 inserting clause (f) in Explanation to paragraph 5 is only prospective in nature and consequently would not be of any relevance to the case on hand - Decided against Revenue.
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2014 (1) TMI 1517
Availment of CENVAT Credit - Whether the items Panel Board and PVC Cables which do not participate in the manufacturing process can be said to fall within the definition of Capital goods under Rule 57 Q of the Central Excise Rules, 1944, at the relevant time and accordingly availed credit as provided under the said Rule - Held that:- "goods" which are mentioned in the question referred to us would come within the term "capital goods" envisaged in this provision and therefore the assessee is entitled for the MODVAT credit on these items. Indeed the definition of "capital goods" is comprehensive in nature and therefore we do not have any scintilla of doubt in our mind that Panel Board and PVC cables which do not participate in the manufacturing process and are only used for producing or processing of any goods or for bringing about any change in any substance for the manufacture of final product would be included in "capital goods" and hence the assessee is entitled for MODVAT credit on these items - Following decision of CCE v. Jawahar Mills Ltd. [2001 (7) TMI 118 - SUPREME COURT OF INDIA] - Decided against Revenue.
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2014 (1) TMI 1475
Availment of CENVAT Credit - Reasonable steps / care to be taken before availing Cenvat Credit - Duty paying documents - Violation of the provisions of Rule 3, 9(3) & Rule 7 of the Cenvat Credit Rules, 2004 - Held that:- both the Commissioner (Appeals) and the Tribunal have given cogent reasons to indicate that the assessee had taken reasonable steps to ensure that the inputs in respect of which he has taken the cenvat credit are goods on which the appropriate duty of excise, as indicated in the documents accompanying the goods, has been paid. Admittedly, in the present case, the assessee was a bona fide purchaser of the goods for a price which included the duty element and payment was made by cheque. The assessee had received the inputs which were entered in the statutory records maintained by the assessee.
The goods were demonstrated to have travelled to the premises of the assessee under the cover of Form 31 issued by the Trade Tax Department, and the ledger account as well as the statutory records establish the receipt of the goods. In such a situation, it would be impractical to require the assessee to go behind the records maintained by the first stage dealer. The assessee, in the present case, was found to have duly acted with all reasonable diligence in its dealings with the first stage dealer - Decided against Revenue.
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2014 (1) TMI 1474
Penalty u/s 11AC - Availment of CENVAT Credit of CVD which was paid through DEPB - Invocation of extended period of limitation - Whether on the facts and in the circumstances of the case the CESTAT was justified in holding that although on merits the Respondent shall not succeed following Apex Court's decision in the case of Commissioner of Central Excise Vs. Sunwin Technosolution P. Ltd. reported in [2010 (9) TMI 71 - SUPREME COURT OF INDIA], the appeal filed by the Respondent only succeeds only on the point of time bar and not on merit - Held that:- Tribunal has given absolutely no consideration either to the reasons indicated in the order of the Additional Commissioner while confirming the duty demand or to those contained in the order of the Commissioner (Appeals). Both these orders take note of the fact that the ER-1 Returns and Cenvat Credit Returns submitted by the assessee did not disclose or reflect that the additional customs duty had been paid through DEPB adjustments, nor did the returns show that the Bills of Entry were submitted to the department. Moreover, it has been found that the payment of additional customs duty through DEPB adjustments was not incorporated in any of the returns and it was only in the course of audit that it was found that the additional customs duty had not been paid in cash.
It was on this basis that the extended period of limitation was sought to be invoked. If the Tribunal had to reverse this view regarding invocation of the extended period of limitation, it was necessary for it to indicate some reasons why the factual findings contained in the order of the Additional Commissioner and the Commissioner (Appeals) were being overruled. There is absolutely no reasoning on that aspect - Therefore, proceedings should be restored back to the file of the Tribunal for a fresh consideration - Decided in favour of Revenue.
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2014 (1) TMI 1473
Availment of suo moto credit which was reversed earlier - eligible cenvat credit credit under Rule 6(5) of CCR - Refund claim under Section 11B - Whether the assessee was entitled to take credit to the tune of ₹ 3,21,308/- as per Rule 6(5) of the Central Excise Rules, 2004 in respect of those services specifically mentioned in the book, which was earlier reversed by the assessee - Held that:- assessee originally availed the Cenvat Credit on service tax for discharging its liability. However, for sound reasons, it reversed the credit. Strictly speaking, in this process, there is only an account entry reversal and factually there is no outflow of funds from the assessee to result in filing application under Section 11B of the Central Excise Act, 1944 claiming refund of duty - it was not a case of refund of duty falling under Section 11B of the Central Excise Act, 1944 and that the assessee was to comply with the provisions of Section 11B of the Act. The view of the Tribunal that the assessee should seek reversal in the appropriate judicial forum, if the assessee was aggrieved by the earlier order herein does not arise at all.
Sum of ₹ 3,21,308/- for which suo motu credit was taken by the assessee was forming part of ₹ 5,38,796/-, which was earlier reversed by the assessee. On the admitted fact, ₹ 3,21,308/- represented the enumerated input services as given under Rule 6(5) of the Cenvat Credit Rules, 2004, we have no hesitation in accepting the plea of the assessee that on a technical adjustment made, the question of unjust enrichment as a concept does not arise at all for the assessee to go by Section 11B of the Central Excise Act, 1944 - order of the Tribunal is set aside and allow the appeal filed by the assessee and hold that legally speaking there is no impediment in the asseesee taking suo motu credit - Decided in favour of assessee.
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2014 (1) TMI 1472
Appropriation of the rebate claims with duty demand - Held that:- revenue is not seeking to initiate recovery proceeding on the expiry of a stay. In this case, the revenue is seeking to exercise its power under Section 11 of the Act by adjusting the amount which is due (rebate claim) to the petitioner from the revenue against the amount payable by the petitioner to revenue as a consequence of the order dated 31 July 2006. It is to be noted that the so called stay which was granted to the petitioner on 15 December 2006 by the Tribunal was not in exercise of its inherent powers but was in exercise of powers under Section 35F of the Act which only dispenses with the requirement of pre-deposit of duty and penalty for entertaining the appeal on merits.
The dispensing with the requirement of predeposit of duty and penalty under the proviso to Section 35F of the Act for the purposes of hearing the appeal could at the highest be said to restrain the revenue from taking any coercive action for recovery but would not estop the revenue from adjusting amounts which become subsequently due to the petitioner towards the amount payable by the petitioner to the department. Besides, introduction of the third proviso to sub-section (2A) of Section 35C of the Act introduced in 2013 would appear to dilute the applicability of the decision relied upon by the petitioner.
Revenue allowed to appropriate the duty amount with rebate but not allowed to adjust penalty amount, the balance would be released to the assessee. - Decided partly in favor of assessee.
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2014 (1) TMI 1471
Restoration of appeal - Tribunal directed the respondent herein to make deposit of ₹ 4,00,000 within a period of 8 weeks and report compliance on 6th May, 2011 - Vide order dated 10th June, 2011 on account of non-compliance of order dated 4th February, 2011, the learned Tribunal dismissed the appeal - The respondent herein subsequently deposited an amount of ₹ 4,00,000 on 12th December, 2012 and filed an application for restoration of appeal purportedly under Rule 20 of the CESTAT (Procedure) Rules, 1982 - Tribunal vide order dated 15th April, 2013 allowed the application - Held that:- From the perusal of the rules, it can thus be revealed that though Rule 20 permits dismissal of an appeal on account of non-appearance of the appellant, proviso thereto enables the learned Tribunal to restore the appeal on the assessee making out a sufficient cause for his non-appearance when the appeal was dismissed. It can further be seen that apart from that, Rule 41 enables the Tribunal to make such orders or give such directions as may be necessary or expedient to give effect or in relation to its orders or to prevent abuse of its process or to secure the ends of justice. It can thus clearly be seen that under Rule 41, the learned Tribunal has ample powers which can be used to prevent the abuse of its process or to secure the ends of justice.
Under Rule 41 the CESTAT has wide powers to prevent abuse of its process and to secure the ends of justice. As such, though the application was filed under Rule 20, it will have to be held that jurisdiction exercised by the learned Tribunal was under Rule 41 of the said Rules - in the absence of any provision in the Act or Rules specifically prohibiting restoration of appeal dismissed on the ground of non-deposit of penalty, the learned Tribunal has a power and jurisdiction to recall its order, if ends of justice require such course of action - Decided against Revenue.
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2014 (1) TMI 1470
Waiver of pre deposit - Recovery of excise duty - Penalty u/s 11AC - Invokation of section 11A(1) - Held that:- neither before the learned Tribunal nor even before this Court the petitioner-original appellant has pleaded any financial hardship and/or undue hardship - merely establishing 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, it would be undesirable to require the assessee to pay full or substantive part of the demand. Petitions for stay should not be disposed of in a routine matter unmindful of the consequence flowing from the order requiring the assessee to deposit full or part of the demand. 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. Merely because this Court has indicated the principles that does not give a license to the forum/authority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizens' faith in the impartiality of public administration, interim relief can be given - For a hardship to be 'undue' it must be shown that the particular burden to have 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 - Following decision in case of Benara Valves Ltd. [2006 (11) TMI 6 - SUPREME COURT OF INDIA] - However, extention of time make pre deposit grated - Decided against assessee.
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2014 (1) TMI 1469
Benefit of CENVAT Credit - Credit on sugar cess - CENVAT credit taken on Sugar Cess paid as countervailing duty or CVD - Recovery of irregularly availed and utilized of CENVAT Credit under Rule 12 of the CENVAT Credit Rules, 2004 - Whether the assessee is entitled for Cenvat Credit, on the Sugar Cess (under Section 3(4) of the Sugar Cess Act, 1982) as the same is not one of the duties allowed for Cenvat Credit under Rule 3(1) of the Cenvat Credit Rules, 2004 - Held that:- there must be actual quid pro quo for a fee has undergone a sea change in the recent years. The tax recovered by a public authority invariably goes into the Consolidated Fund, which ultimately is utilized for all public purposes. Whereas, a cess levied by way of fee is not intended to be, and does not become, a part of the Consolidated Fund. It is earmarked and set apart for the purpose of services for which it is levied.
Article 270 make it very clear that no money out of the Consolidated Fund of India shall be appropriated except in accordance with law and for the purposes and in the manner provided in the Constitution - Any cess levied and collected in order to constitute a fee after such collection should go into a special fund earmarked for carrying out the purpose of the Act. The said fund so set apart should be appropriated specifically for the performance of the specified purpose and it should not be merged in the public revenues. In other words, the cess levied by way of fee is not intended to be and does not become a part of the Consolidated Fund. It should be earmarked and set apart for the purpose of services for which it is levied. Then only it should be described as a fee and not tax. If the cess levied and collected is credited to the Consolidated Fund of India and it has to be appropriated by the Parliament by law and then only the said amount could be credited to the Fund; it ceases to be a fee and partakes the character of a duty or a tax.
Section 4 of the Act explicitly provides that the proceeds of the duty of excise levied under Section 3 shall be credited to the Consolidated Fund of India. Sub-Section (2) of Section 3 of the Sugar Development Fund Act, 1982, provides that the amount so credited, shall after due appropriation made by Parliament by law be credited to the Sugar Development Fund. Thus the cess collected under the Act invariably goes to the Consolidated Fund, which ultimately is utilized for all public purposes. Therefore, there is no quid pro quo between the cess levied and collected and the services rendered for such payment. On the contrary, the proceeds are credited to the Consolidated Fund of India which is meant to be utilized for all public purposes, may be including the purpose contemplated under the Sugar Development Fund Act, 1982. In the light of the aforesaid statutory provisions, the cess imposed under the Act is a duty of excise or a tax - Therefore, the sugar cess paid under the Act is tax, and to be precise it is DUTY OF EXCISE and not FEE.
When an assessee imports goods into India in addition to payment of basic Customs Duty, he shall able be liable to pay additional duty of customs equal to the excise duty for the time being leviable on a like article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article shall be so liable shall be calculated at that percentage of the value of the imported article. Therefore, on imported goods or articles, in addition to basic Customs Duty, an assessee is also liable to additional duty of customs, equivalent to excise duty. The excise duty is leviable under the Central Excise Act 1944 and also the Sugar Cess Act, 1982.
Duty of excise is not ( sic ) collected as a cess at the time of production of the sugar in the assessee's sugar factory in India. It is not also in dispute that it is also collected at the time of importing raw sugar. At the time of importing raw sugar the assessee has paid the additional Customs duty or CVD (countervailing duty) as prescribed under Section 3 of the Customs Tariff Act of 1975. If the Article imported is a like article produced or manufactured in India and if excise duty on such like article is leviable, the assessee is liable to pay the additional duty. The Excise Duty on sugar is payable under two enactments, i.e., [1] Section 3 of Central Excise Act of 1944, at the rate prescribed in the Central Tariff Act, 1985. In addition, the assessee is also liable to pay cess as a duty of excise under the Sugar Cess Act of 1982. On such additional duty or CVD paid at the time of import by the assessee, apart from the Basic Customs Duty, he is entitled to the CENVAT Credit in terms of clause (vii) of Rule 3 of CENVAT Credit Rules, 2004.
Assessee was entitled to claim CENVAT credit in respect of the cess paid as additional duty (CVD) on raw sugar imported under the Sugar Cess Act of 1982 read with Section 3 of the Customs Tariff Act, 1975 - Decided against Revenue.
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2014 (1) TMI 1468
Denial of rebate claim - Rebate in terms of Rule 18 of the Central Excise Rules, 2002 and notification no.19/2004 dated 6.9.2004 - Appellate authority allowed rebate claim - Held that:- When the Revenue authorities as well as revisional authority have concurrently come to the conclusion that there was direct co-relation of goods manufactured in the factory with the goods being exported and when such fact was established through reliable, undisputed and contemporaneous documentary evidence, we are not inclined to interfere in the writ jurisdiction under Article 226 of the Constitution of India - Revisional authority, as noted above, confined this decision to the facts of the case and has in fact provided that such lapses cannot be allowed to be repeated time and again and in case of future reoccurrence of non-compliance of prescribed procedure, department would be justified in viewing such matter as substantial non-compliance of prescribed procedure resulting into rejection of rebate claim - Decided against Revenue.
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2014 (1) TMI 1467
Rate of tax - Tax on education cess - whether the appellant is liable to pay education cess again on the amount which has been worked out by calculating the customs duty payable on the goods in respect of clearances made by 100% EOU to domestic tariff area - Held that:- adjudicating authority committed serious error in disregarding binding precedent and that there are absolutely no disputed facts. We would, therefore, not insist that the petitioners once again follow the same gamut of taking the appeal route. To revert back to the issue at hand, we may recall that the question of computation of Education Cess and Secondary and Higher Education Cess was decided finally by the Tribunal in favour of the petitioners. As of now, such decision of the Tribunal holds the field. Such decision of the Tribunal would be binding on the adjudicating authority.
Even if the Department is of the opinion that the issue is not free from doubt, it is not open for the adjudicating authority to ignore the binding precedent. We may notice that under the Central Excise Act, 1944 and the Customs Act, the Department has the right to appeal even against the order-in-original passed by the adjudicating authority. This is in contrast to the provisions contained in the Income-tax Act, 1961 where against an order passed by the assessing officer, the Department has no right to appeal. Only remedy available to the Revenue is by way of a revision against the order of the assessing officer that too only if it is found that such order is erroneous and prejudicial to the interest of the Revenue. Such rigors however, are not applicable insofar as the Department’s right to appeal against the order of the adjudicating authority is concerned under the Central Excise Act, 1944 - Therefore, decided against assessee.
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2014 (1) TMI 1466
Rebate under Rule 18 of the Central Excise Rules, 2002 - Simultaneous benefit of rebate on finished goods and inputs used in manufacturing of such goods on export - Whether, the word “or” used in Rule 18 should be read as “and” because under Rule 18 of the Central Excise Rules, 2002 - Held that:- When we consider Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004, we find that it deals with the rebate of whole of the duty paid on ‘materials’ i.e. inputs used in the manufacture or processing of export goods. It nowhere lays that on finished goods also, rebate can be claimed. Thus, issuance of two difference notifications makes it clear that both the benefits are not available to be claimed simultaneously, and the words “whole of the duty” used in the notification has to be understood in the context of materials/inputs used in the manufacture or processing of export/inputs used in the manufacture or processing of export goods, whereas Notification No. 19/2004-C.E. (N.T.) has to be understood with respect to the manufactured/finished goods. Issuance of two separate notifications also indicates that the benefit on both is not available at the same time.
Merely by the fact that Form ARE-2 is providing either to claim the rebate on finished goods or on inputs used in manufacture of such goods, it cannot be culled out that the same is available on both i.e. finished goods as well as on the inputs. Merely by preparation of any combined form for both the benefits, the word “or” cannot be construed as “and” to be used conjunctively.
The statutory Rules 18 and 19 of the Rules of 2002, which have been framed, make it clear that that exemption of duty or rebate is not available on both i.e. inputs as well as finished goods; same is available only on one and such intendment has to be given full effect to - Therefore, decided against assessee.
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2014 (1) TMI 1387
Waiver of pre deposit - Imposition of penalty and interest - Held that:- though there had been shortcomings on the part of both the parties but in the ultimate analysis, the cause of justice demands a consideration of the appeal on merits rather than to shunt the applicant out for some part of delay attributable to it and some part of technicalities that may otherwise operate - respondents had not been discreet in this matter on several aspects. Be that as it may, the fact of the matter now remains that the applicant has indeed deposited the amount of ₹ 25 lacs on 09.10.2013. Secondly, the appeal has not been dismissed on merits but has only been dismissed on account of default in not making the deposit of the amount of ₹ 25 lacs. It is apparent that even while dismissing the writ petition, this Court had enlarged the time for making deposit at the request made on behalf of the petitioner-applicant and granted four weeks' further time. Obviously, the anxiety of the Court was to ensure consideration of the appeal on merits upon the petitioner-applicant making the deposit - interest of justice shall be served if the applicant is put to the condition of depositing the entire principal amount towards the tax liability under the order impugned - Conditional stay granted.
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2014 (1) TMI 1386
Condonation of delay - Delay due to 17 skeleton staff working in the writ petitioner company and therefore, it was not possible for them to keep track of the things - Held that:- petitioner company was declared sick and proceedings were initiated in Delhi High Court for winding up. There were only skeleton staff working in the writ petitioner company due to which, it was not possible for them to keep track of the things. Because the Advocates gave legal opinion on 02.02.2005 informing the writ petitioner that they have a good case for filing an appeal. Thereafter, the writ petitioner applied to the High Power Committee for COD clearance and only after obtaining clearance, the appeal could be filed. When the writ petitioner has been declared a sick company and proceedings have been initiated for winding up and when the writ petitioner was entangled in litigation and other consequential proceedings, they cannot be expected to take prompt steps for filing the appeal. Even though, the Writ Court will not normally interfere with the discretion exercised by the Tribunal, but in this case, having gone through the fact that the proceedings have been initiated against the writ petitioner / company, we are of the view that it is a fit case to condone the delay - Delay condoned.
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2014 (1) TMI 1385
Penalty u/s 11AC - Clandestine removal of goods - Held that:- the Commissioner (Appeals) had confirmed addition to the extent of 14.555 MT of G.M. Balls and the Tribunal has also affirmed the finding of fact that the respondent-assessee was able to satisfactorily explain from the records maintained in respect of 45.594 MTs and it is admittedly a finding of the fact that even the revenue has not challenged that the evidence produced by the respondent-assessee is fabricated or false and when the said finding has not even been challenged before the Tribunal, then admittedly the respondent-assessee was able to prove his case and found favour with the two appellate authorities. - Decided against Revenue.
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2014 (1) TMI 1384
Waiver of pre deposit - Availment of CENVAT Credit - Appellant was directed to predeposit an amount of Rs.1crore out of the balance amount of cenvat credit still payable - Held that:- The case of the revenue is that prior to restructuring of the tariff, Ethyl Alcohol was an excisable goods as it found mention in the tariff but not after restructuring of the tariff - Tribunal has followed its earlier decision in the matter of Ugar Sugar Works Ltd. vs. Commissioner of Central Excise, Belgaum [2007 (11) TMI 522 - CESTAT, BANGALORE] while dealing with the issue of Ethyl Alcohol manufactured using molasses as an input during the period from 1 July 2005 to 31 March 2006 - Therefore, impugned order is set aside and direct the Tribunal to decide the stay application afresh - Decided in favour of assessee.
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