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Central Excise - Case Laws

Showing 181 to 188 of 188 Records

• 2014 (10) TMI 21
  

  Cenvat credit - Bogus invoices - Equivalent penalty - Non supply of documents - Held that:- Except for statement of Shri Surinder Mahenderu, proprietor of M/s. Nicks India, no other documents have been supplied and in the first round of appeal before the Tribunal, relied upon documents had not been supplied. . The fact of non supply of relied upon documents is clear from the observations of the Commissioner (Appeals) in para 11 of his order wherein, after mentioning the appellants plea that certain relied upon documents such as verification report of stocks, job work challans and copy of statement of Aklesh Sharma have not been supplied and that the departments officer representing the department informed that these copies can be made available to the assessee. DR has no objection if the matter is remanded to the original adjudicating authority and he undertakes that this time, all the relied upon documents would be supplied - Matter remanded back - Decided in favour of assessee.

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• 2014 (10) TMI 20
  

  Restriction on utilization of CENVAT Credit - Default in payment of duty - Rule 8(3A) of CER, 2002 - Held that:- The provisions of sub-rule 8 (3A) was introduced to curb the tendency on the part of assessees in defaulting in payment of duty and the language used in the said Rule, especially the use of non-obstante clause makes it absolutely clear that during the period of default, the assessee cannot utilize the credit lying in the Cenvat Credit account for the purpose of payment of excise duty. The decision of the Hon'ble Bombay High Court in the case of Lloyds Steel Industries Ltd had dealt with a different situation prevailing under Rule 49 of the Central Excise Rules, and the language used therein was also different. Therefore, the ratio of the said decision cannot apply in the present case. On the other hand the decision of the Hon'ble High Court of Karnataka in the case of Manjunatha Industries case and the Hon'ble High Court of Madras in Unirols Airtex case are directly on the issue and interprets Rule 8 (3A) by stating that "utilization of Cenvat Credit during default period is an exercise in nullity." Therefore, the claim of the appellant that the reversal of Cenvat Credit of ₹ 74,45,393/- confirmed by the adjudicating authority is not correct in law, prima facie is not sustainable. - stay granted partly.

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• 2014 (10) TMI 19
  

  Valuation - Clearance of semi finished goods to other unit - Demand of differential duty - Difference in declared price - The price declared for clearance to the Daman unit is less by ₹ 3/- per unit sold. At the Daman unit after undertaking the process of printing, embossing, etc., the finished products are cleared by including the cost of printing, embossing, etc. and at the price which is equal to such goods cleared from the unit at Thane. The department's contention is that there is no evidence that the goods cleared to the Daman unit are semi-finished or partially processed - Held that:- in view of the categorical finding by the adjudicating authority that the unit at Daman had discharged excise duty liability after undertaking the processing on an additional value of ₹ 3/- per unit, we uphold the appellant's claim that what they had cleared to Daman unit was semi-finished PVC filament/sheets without printing or embossing - Decided in favour of assessee.

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• 2014 (10) TMI 18
  

  Waiver of pre deposit - Determination of assessable value - Interest u/s 11AA - Penalty u/s 11AC - Held that:- In the appellant's own case, the co-ordinate Bench at Ahmedabad Bench has taken a view that the transaction would not come under the provisions of Rule 10A of the Central Excise Valuation Rules, 2000. Therefore, the appellants have made out a prima facie case for grant of unconditional stay. Accordingly, we grant waiver from pre-deposit of dues adjudged against the appellant and stay recovery thereof during the pendency of the appeals. Since the duty demand confirmed against the main appellant is stayed, the co-appellants would also get the same relief. - Decided in favour of assessee.

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• 2014 (10) TMI 17
  

  CENVAT Credit - Denial of refund claim - Whether the appellant was correct in taking credit on his own in respect of amount paid by him in excess in October 2001 and whether on denial of such credit, whether he can file refund claim - Held that:- appellant did pay an excess amount of duty in October 2001 debiting the same in modvet account. This error was noticed by them in October 2004 and by a letter informing the Range Superintendent and Jurisdictional Assistant Commissioner and after a lapse of one month, they took credit in the modvat account in October 1994. In our view, availing credit of the excess duty paid through modvat account after a lapse of three years, that too suo moto, seems to be incorrect as there is nothing indicated in the records that the duty was recovered by them or otherwise. It is also noticed that the appellant had on their own paid up the said amount as directed by the lower authorities alongwith interest on 24.08.2005 hence the said credit and subsequent reversal has squared up the demands which has been raised on the appellant - Refund is correctly rejected by the lower authorities as the provisions of Section 11B of Central Excise Act, 1944, mandates an assessee to claim the refund of any excess duty paid within a period of one year from the date of payment of such duty. - Decided against assessee.

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• 2014 (10) TMI 16
  

  Clandestine removal of goods - Misdeclaration of goods - Held that:- Shri Laxmi Kant Pandey, brother of Shri K.K. Pandey, proprietor of the said firm confessed that he was the actual person looking after the day to day affairs of the company. It was also confirmed that the production and clearance recorded in their residential premises was correct and he also testified the details of the production and clearances. It was confirmed that the production was cleared clandestinely without payment of duty. It is also evident from the statements of Shri Mahesh Kumar and Shri Shobh Nath that they had supplied the tobacco and supari which were recovered from the residential premises of the appellants. This is a case where there was no contest of the allegations. The actual allegations have been admitted and confessed. The activity of clandestine manufacture and clearances is clearly manifested. It is clear case of misdeclaration and suppression of production with intent to evade central excise duty to cause subterfuge to the revenue and it leaves no scope for interference in the order-in-original passed by the adjudicating authority which is also confirmed by Commissioner (Appeals) - Decided against Assessee.

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• 2014 (10) TMI 15
  

  Clearance of goods without payment of duty - Imposition of redemption fine and penalty - levy of Central Excise duty on readymade garments - Held that:- The lower authorities have taken a view that because warehouse was a registered premises and the readymade garments were lying in the registered premises, the appellant could not have cleared them without payment of duty. In our opinion the fact that all the stock lying on 28-2-2011 had been received from their job workers under proper documents showing nil rate of duty, in terms of the clarification issued by the Board, the appellants may not be liable to pay tax again. Only if the goods had not been cleared under documents without payment of duty and was in the warehouse, then only said readymade garments would attract duty in terms of Board’s instruction. In view of the assertion by the learned counsel that the goods in the warehouses on 28-2-2011 had actually been received from job workers under documents showing nil rate of duty and appellant was covered by the Board’s instruction, we consider that appellant has a prima facie case in their favour - Matter remanded back - Decided in favour of assessee.

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• 2014 (10) TMI 14
  

  Rectification of mistake - Undervaluation - MRP based valuation u/s 4A - change in MRP subsequent to removal of goods - non declaration of the actual MRP on ceramic glazed tiles and vitrified tiles - two periods i.e. prior to 01.03.2008 and post 01.03.2008. - demand of differential duty and levy of penalty - Held that:- applications which are filed by the Revenue is on the observations/findings recorded by the Bench and the said findings and observations are not errors apparent on the face of the record and if the Revenue is aggrieved by such findings and observations, the legal remedies available to them should be explored, if advised to do so. We find that by these applications, Revenue is trying to reargue the entire cases which cannot be permitted as has been laid down by the Apex Court in the case of RDC Concrete (India) Pvt. Ltd. (2011 (8) TMI 25 - SUPREME COURT OF INDIA) wherein their Lordships have specifically settled the law which is rectification of mistake cannot be done by re-appreciation of evidence.

  Since the entire case in final order dated 12-12-2013 was decided on the basis of the legal provisions existing during the material period, and the judicial pronouncement of the Co-ordinate Bench on the same issue was followed and it was held that prior to 1-3-2008, RSP could not be re-determined - though the demand for the period post 1-3-2008 has been set aside, but the matter is remanded back to the lower authorities to appreciate the evidence on record and come to a conclusion, which itself would indicate that we had not recorded any findings on the factual matrix in the case in hand - Rectification denied.

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