|
Advanced Search Options
Central Excise - Case Laws
Showing 21 to 40 of 315 Records
-
2014 (3) TMI 988 - CHHATTISGARH HIGH COURT
Denial of CENVAT Credit - Intention to evade duty - Held that:- AO has recorded a finding that the Assessee had not received the Concast Slab and yet it claimed Modvat/Cenvat credit on the same. It is on this basis, the AO has held that the requirement of the ingredient ‘with intent to evade duty’ was satisfied. This finding was set aside by the Commissioner (Appeals). However, the order of the AO has been upheld by the Tribunal. - Tribunal has recorded a finding that the impugned goods were not transported by the Assessee through the vehicles claimed by him. There is no illegality in the finding. - it cannot be said that the requirement of the ingredient ‘with intent to evade duty’ was not satisfied. - Decided against assessee.
-
2014 (3) TMI 983 - CESTAT NEW DELHI
Clandestine manufacure and removal of goods - Imposition of duty jointly and severally - whether demands can be confirmed jointly and severely was the subject matter of various decision of the Tribunal - Held that:- Adjudicating authority has not been able to make out his mind as to whether the duty has to be confirmed, if at all, against M/s. GTC Industries or KCL. It seems that on account of failure to come to conclusive finding as regards the evader of duty, he has found it easy to confirm the demands jointly and severely against both the parties. Apart from the imposing independent penalty of ₹ 29 crore to M/s. GTC Industries Ltd. - impugned order is required to be set aside and matter is required to be remanded for reconsideration and fresh adjudication - Decided in favour of assessee.
-
2014 (3) TMI 980 - GAUHATI HIGH COURT
Condonation of delay - Held that:- Tribunal should have condoned the delay in filing the appeal rather than to dismiss it on the ground of limitation. It is apart from the fact that the delay was hardly of 95 days and secondly : now the ground, which the appellant has stated in the present appeal, persuade us to condone the delay by holding that it constitutes sufficient cause within the meaning of Section 5 of the Limitation Act. - Delay condoned.
-
2014 (3) TMI 979 - SC ORDER
Waiver of pre deposit - Misdeclaration - Supreme Court dismissed the petition filed by the assessee against the decision of high Court [2013 (7) TMI 888 - PUNJAB AND HARYANA HIGH COURT], however, Court extended the time to make the pre deposit.
-
2014 (3) TMI 978 - CESTAT CHENNAI
Condonation of delay - Manager, who handles the case had received the impugned order and left the service without handing over case papers to his successor - Held that:- Reason for delay is that the misplacement of the record by the employee of the appellant-Company. It is stated that Mr. Vasudevan, Manager of the Company left the service without handing over the papers to his successor. The learned Counsel for the appellant argued the case on merits, which has no relevance unless the delay is condoned. It is not the case of the applicant that the Manager had left the Company with the case file. It is the duty of the successor to trace the files lying in the office. It is seen that the applicant appeared in personal hearing before the Commissioner (Appeals). Thus, they were well aware of the proceeding before Commissioner (Appeals). There is a gross negligence and inaction on the part of he applicant. The Hon’ble Allahabad High Court in the case of Prem Heavy Engineering Works (2013 (10) TMI 50 - ALLAHABAD HIGH COURT) dismissed the application filed by the assessee of a delay of 41 days in filing the appeal before the Tribunal for the reason that the Managing Director of the Company was the only responsible officer left in the factory due to sickness. - delay cannot be condoned for the same reason that the record was misplaced by the employee of the company. In view of that, I do not find any substance in the application filed by the applicant. - Condonation denied.
-
2014 (3) TMI 974 - SC ORDER
Condonation of delay - Inordinate delay of 8 Years – Supreme Court after perusing the Review Petitions and record of the Special Leave Petitions were convinced that the order of which review has been sought does not suffer from any error apparent warranting its reconsideration. Therefore Supreme declined to condone the delay.
-
2014 (3) TMI 973 - ANDHRA PRADESH HIGH COURT
Benefit of Notification No. 46 of 1994 dated 1-3-1994 and Notification No. 56 of 1995 dated 16-3-1995 - whether the machinery ESWTU, (Electro Static Water Treatment Unit), that is being manufactured by the appellant under the name and style of Scalemaster is capable of production of a commodity - Held that:- As in the present day of outsourcing every aspect of industrial activity we can visualise a situation wherein a user industry may contract out supply of treated water of a specified quality, which in turn may be useful in the user industry. If such possibility exists, if the contention of the appellant is to be accepted that the machinery as being manufactured by them is capable of converting hard water into soft water and water laden with minerals, impurities into usable water, one may not be able to say the machinery is not capable of production of a commodity . The claim of the appellant is for exemption under Section 5 of the Act. A perusal of the table would indicate the exemption is basically product specific and wherever the legislature thought it fit to impose a condition they have done so. - there is no qualifying word before the commodity as a ‘marketable commodity’. In other words, if the machinery is capable of production of a commodity, the exemption notification would have to be given effect. Matter remanded back - Decided in favour of assessee.
-
2014 (3) TMI 972 - SC ORDER
Classification of HDPE Tapes – Assessment Provisional or Not - Supreme Court after condoning the delay admitted the appeal of the Revenue filed against the order of Tribunal [2013 (10) TMI 1146 - CESTAT NEW DELHI], wherein Tribunal held that order classifying the goods not to be treated provisionally merely because the appeal or other proceedings questioning the correctness of the such order are pending before the higher authorities and for establishing the clearances to be on the provisional basis, an order under Rule 9B of the erstwhile Central Excise Rules, 1944 and clearances / payment of duty on provisional basis is essential. As such, we hold that the assessment were not provisional as held by Commissioner (Appeals).
-
2014 (3) TMI 970 - CESTAT NEW DELHI
Denial of refund claim - Unjust enrichment - Small Scale Exemption Notification No. 8/2002-C.E., dated 1-3-2002 - appellants were using the brand name of another person - Held that:- appellants’ pre-deposited the amount after confirmation of demand against them and on success of the same, they are entitled to the refund of such pre-deposit. It is not the Revenue’s case that there was any infirmity in the sanction of the refund claim by the original Adjudicating Authority. The only ground is that the same was not pre-audited. In the absence of any dispute about the availability of the refund claim, I find that this procedural aspect prescribed by the Board Circular, which is in any case, is not requirement of law cannot act as prejudice to the appellants’ interest. - Decided in faovur of assessee.
-
2014 (3) TMI 969 - ANDHRA PRADESH HIGH COURT
Stay Application - Held that:- If no stay order is granted within 30 days from the date of preferring the appeal, the recovery proceedings have to be initiated irrespective of pendency of the appeal or pendency of the application for stay. - there may be various situations and circumstances when the Tribunal or the appellate Authority is unable to dispose of the stay applications within 30 days, for which, the appellant might not be at fault. In such situation, if the aforesaid notification to the extent as above is allowed to be operative, and consequently, recovery proceedings is initiated pending disposal of the stay application by the Tribunal or appellate authority it will result in rendering the appeal and application being infructuous.
Notification indirectly interferes with the administration of justice holding out a threat to recover if stay application is kept pending for hearing beyond 30 days. The notification has been issued aiming at to put pressure indirectly upon appellate authority or Tribunal as the case may be, though the same are not binding upon appellate fora. A provision of this nature will work as arbitrary instrument against assessee litigants who are bona fide one. We cannot overlook the fact that some unscrupulous litigants may take advantage of the pendency of the stay application, so much so, the Revenue cannot proceed against them for a long time. Therefore, some balance should be struck so that both the parties will not be prejudiced - Decided in favour of assessee.
-
2014 (3) TMI 968 - CESTAT BANGALORE
Waiver of pre deposit - Exemption under Notification No. 3/2006, dated 1-3-2006 - Held that:- Tribunal while deciding the matter in the case of Maheshwari Solvent Extractions Ltd. (2013 (7) TMI 51 - CESTAT MUMBAI). Further, it is also seen that Hon’ble Supreme Court has also observed that what is being considered should be something that was intended to be different product of manufacture by the industrial unit. At this stage, in view of the detailed discussions about waste or by-product by the Tribunal in the case of Maheshwari Solvent Extractions Ltd., we consider that the appellant has made out prima facie case for waiver of pre-deposit on merits. Accordingly, the requirement of pre-deposit is waived and stay against recovery is granted during pendency of the appeal. - Stay granted.
-
2014 (3) TMI 922 - ALLAHABAD HIGH COURT
Denial of refund claim - Unjust enrichment - Classification of goods 'Gulabari' - Classification under sub heading 3003.30 or under sub heading 3303.00 - Whether, under the facts and circumstances of the case the respondents have rebutted the statutory presumption under Section 12-B of the Act so as to be entitled for refund under Section 11-B of the Act - Held that:- differential excise duty paid by the appellant after the order dated 11.12.1997 related to the period 1st March, 1990 to 30 September, 1997. The classification of the product by the department, which imposed 18% excise duty, was challenged by the respondent and in pursuance to the demand as made by order dated 11.12.1997, the deposits were made by the respondent under protest after writing letter dated 18.12.1997 which has been brought on the record as Annexure-C.A.-3. In the letter dated 18.12.1997, it was clearly mentioned that the respondent does not agree with the classification of the product. It was further mentioned that the respondent is not changing the maximum retail price or wholesale price of the product.
When the payment of differential excise duty was made by the respondent under protest and the M.R.P. has not been raised by the respondent, we fail to see that how the incidence of such duty shall be treated to have been passed on the buyer of such goods. The Assistant Commissioner Central Excise had referred to the letter dated 18.12.1997 sent by the respondent by which it was mentioned that respondent has not change maximum retail price or wholesale price and is paying the duty under protest.
Amount of ₹ 10,94,263/- was deposited by the party on their own has not been shown in the balance sheet of relevant year 1997-98 in the schedule of loans and advances to be recovered for the department is not sustainable as the party had deposited this amount under protest as an advance payment of central excise duty pending enquiry and investigation and intimated this fact to the Additional Director General of DGAE, Central Excise New Delhi vide their letter dated 06.12.1997 and has also shown in their Balance Sheet of the company for whole of the group in the relevant year 1997-98 in the schedule of "OTHER CURRENT ASSETS". - Revenue had not disputed the facts of examination of balance sheet in their Grounds of Appeal. So, it is evident from the record that the Commissioner (Appeals) allowed the refund claim after examining the unjust enrichment. Hence, I do not find any reason to interfere the order of the Commissioner (Appeals) - Decided against Revenue.
-
2014 (3) TMI 921 - GUJARAT HIGH COURT
CENVAT Credit - Place of removal - Place of removal is defined in section 4(3)(c) of Central Excise Act, 1944 – Cargo Handling Services - Assessee took credit of Cargo Handling Services used for export of goods manufactured by it - Department denied said credit on ground that credit could be availed only upto place of removal, port of shipment cannot be regarded as place of removal - Whether the Tribunal was correct in holding that Credit of Service tax paid on Cargo Handling Services is admissible to the manufacturer as "input service tax credit", by overlooking the Statutory provisions of Rule 2(l) of the Cenvat Credit Rules, 2004.
Held that:- When manufacturer transports his finished goods from factory to any other place such as, go-down, warehouse, etc. from where it would be ultimately removed, such service is covered in expression "outward transportation upto place of removal" since such place other than factory gate would be place of removal - Taking this analogy further, in case services are availed essentially for purpose of exporting goods, then, place of removal shall have to be essentially ' port' from where goods are actually taken out of country and, accordingly, said services (including transportation of finished goods upto such place of removal being port) would be input service - Therefore, in case of export of final product, place of removal would be port of shipment and not factory gate and therefore, manufacturer would be entitled to credit of input services availed upto such ' port of shipment'.
Though there is no express inclusion of cargo handling service in definition of input service; however, in light of precedents, it can be held that in case of export of final product, place of removal would be port of shipment and not factory gate and therefore, manufacturer would be entitled to avail amount claimed towards cargo handling as input service under Cenvat Credit Rules - Since, in this case, cargo handling services were utilized for purpose of export of final product, said services availed upto place of removal being port of export (i.e., until goods leave India from port) were service used in relation to clearance of final products upto place of removal - Therefore, assessee was entitled to credit – Decided against Revenue.
-
2014 (3) TMI 920 - CESTAT MUMBAI
Valuation - waiver of pre-deposit - whether the trade discount passed on by the appellant to Oil Marketing Company can be considered as trade discount or not and whether excise duty is leviable on this amount considering the same as part of the value of the goods sold - Held that:- stay petition came up for consideration before this Tribunal on the last occasion on 21.1.2014, this Tribunal after considering the submissions made by both the sides, directed the appellant to make a pre-deposit of 50% of the duty confirmed on the ground that on the earlier decisions, pre-deposit was ordered taking into account the demand for the normal period of time. In the case before us, the entire demand is for the normal period of time. It is a well settled position that while considering various decisions on a matter, the latest decision should be preferred as that would have taken into account all the previous decisions on the subject - Conditional stay granted.
-
2014 (3) TMI 919 - CESTAT KOLKATA
Waiver of pre-deposit of CENVAT Credit - Inputs destroyed during process of manufacture - though had issued the inputs for manufacture of finished goods, but the same were not used in the manufacture but had been lost/destroyed in the process. - Held that:- There is no allegation that the inputs as such were lost and hence no credit would be admissible on the same. On the issue of eligibility of CENVAT Credit, on inputs contained in the WIP material lost/damaged, prima facie, we find that this Tribunal in the case of Arvind International Ltd.’s case (2012 (12) TMI 264 - CESTAT, NEW DELHI) had taken a view that in respect of the inputs, contained in the work in process material, destroyed in fire, is eligible to CENVAT Credit. In view of the said decision, we are of the opinion that the Applicant could able to make out a prima facie case for total waiver of pre-deposit of dues adjudged - Stay granted.
-
2014 (3) TMI 918 - CESTAT MUMBAI (LB)
Maintainability of miscellaneous application as Appeal - Condonation of delay - Refund / Rebate of duty paid on goods supplied to SEZ - Earlier order passed by Court in [2013 (6) TMI 610 - CESTAT MUMBAI] - Difference of opinion - Majority order - The order of the lower appellate authority dated 02/05/2012 has not been challenged by the appellant and has thus become final. However, vide Miscellaneous application dated 22/08/2013, the appellant has sought for implementation of this Tribunal's order dated 26/05/2011 [2013 (6) TMI 610 - CESTAT MUMBAI].
Held that:- Miscellaneous application is not a substitute for an appeal as provided in law - There is no provision or procedure under the Central Excise Act to consider a miscellaneous application as an appeal and condone the delay suo motu even without knowing the reasons for delay. In the earlier order of the Tribunal, there are no findings in relation to rebate even though in the facts position, certain arguments of the appellant are mentioned. Moreover, clause (b) of first proviso to Section 35B(1) prohibits this Tribunal to entertain appeals relating to rebate claim - miscellaneous application is not maintainable as the same cannot be considered as an appeal as provided for in the law relying on the decision of Hon'ble Apex Court in the case of State of Punjab and Ors. Vs. Gurdev Singh, Ashok Kumar [1991 (8) TMI 328 - SUPREME COURT] - Matter sent back for necessary action - Decided against Appellant.
-
2014 (3) TMI 917 - CESTAT NEW DELHI
Valuation - Whether the freight though charged in addition to the price of the goods and shown separately in the invoices, but charged on equalized basis is excludible from the assessable value - Held that:- Though the new Section in force w.e.f. 1-7-2000, does not have a provision specifically providing for exclusion of the cost of transportation from the place of removal to the place of delivery if the transaction value at the place of removal is not known, the cost of the transportation from the place of removal to the place of delivery has to be excluded as, as per the provisions of Section 4(1)(a), the transaction value has be for delivery of the goods at the time and place of removal. In fact for this reason only Rule 5 of the Central Excise (Valuation) Rules, 2000 specifically provides for exclusion of the cost of freight from the place of removal the place of delivery when it is charged from the customer in addition to the price and is mentioned separately in the invoices. The provisions of Rule 5 of the Valuation Rules, 2000 can thus, be said to be analogous to the provisions of sub-section (2) of Section 4, as it stood during period prior to 1-7-2000 - Decided in favour of assessee.
-
2014 (3) TMI 916 - CESTAT AHMEDABAD
Duty demand - Manufacturing of resin and using the same in exempted goods - Held that:- no duty is chargeable on resins and the first appellate authority in the appellant’s own case has set aside the demands confirmed by the adjudicating authority for a period which is subsequent to the period in the issue before us in these appeals, and there being an acceptance of the said order of the Commissioner (Appeals) in the appellant’s own case for the subsequent period, we do not find any reason to sustain the impugned order which is in appeal before us - Following decision of Moti Laminates Pvt. Ltd. - [1995 (2) TMI 67 - SUPREME COURT OF INDIA] - Decided in favour of assessee.
-
2014 (3) TMI 915 - CESTAT NEW DELHI
Denial of CENVAT Credit - Clearance of goods by 100% EOU - Credit to receiver of goods - Revenue contended that Cenvat credit of Customs duty paid is not available to the receiver of the goods, the availment of credit by appellants is against the provisions of the law. - Held that:- In terms of provission of Section 3 of Central Excise Act, 1944, a 100% EOU, when clearing the goods in DTA is required to clear the same on payment of Excise duty. The measure of such duty shall be equal to the amount of Customs duty which would be leviable under Customs Act, 1962 or in any other law for the time being imposed on like goods produced or manufactured, outside India if imported into India. As such what is required to be paid by a 100% EOU is Central Excise duty and not Customs duty - invoices show payment of Central Excise duty and Education Cess on Excise duty. As such admittedly the supplier of the goods has paid Central Excise duty. If the duty paid by the supplier is the Central Excise duty, the appellants is admittedly entitled to the benefit of Cenvat credit of the same - Decided in favour of assessee.
-
2014 (3) TMI 914 - CESTAT NEW DELHI
Recall and rectification of order - Quantum of penalty - High Court and Supreme Court have dismissed the reference application - Held that:- Once the provisions of Section 11AC are held to be invocable against the appellants, the Tribunal has no jurisdiction to reduce the penalty. In the facts of the present case, we find that the Tribunal vide its earlier order dated 11-10-2000 has held the appellants liable to penalty in terms of provisions of Section 11AC. The said order of the Tribunal stands confirmed by the Hon’ble High Court and subsequently by the Hon’ble Supreme Court - Once the provisions of Section 11AC has been held to be applicable in the appellants’ case, calling for imposition of penalty upon them, such penalty has to be to the extent of 100% of the duty amount. As such by following the Apex Court’s judgment in the case of Rajasthan Spinning & Weaving Mills as also in the case of Dharamendra Textiles, we enhance the penalty equivalent to the duty confirmed against the appellants - Decided against assessee.
........
|
