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Central Excise - Case Laws

Showing 61 to 80 of 315 Records

• 2014 (3) TMI 867 - CESTAT MUMBAI
  

  Rectification of mistake - Limitation - Held that:- order of the Hon’ble High Court does not grant liberty to the department to move such application under Section 35(c)(2) of the Central Excise Act, 1944 even beyond a period of six months. Liberty to take appropriate remedy would not imply that the Hon’ble High Court had condoned the delay in filing such application in the absence of any specific direction by the High Court in that regard. Mere grant of liberty to take appropriate remedy does not amount to extend the period of limitation to file the application for rectification of mistake - the application having been filed beyond the period of limitation is liable to be dismissed - Decided against Revenue.

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• 2014 (3) TMI 837 - PUNJAB & HARYANA HIGH COURT
  

  Waiver of pre deposit - Extension of time period for pre deposit - Held that:- A prayer was made by the learned counsel for the appellant to extend the time for pre-deposit. However, in the interest of justice, we extend the time to deposit the amount - Decided partly in favour of assessee.

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• 2014 (3) TMI 836 - PUNJAB & HARYANA HIGH COURT
  

  Quantum of pre-deposit - Waiver of pre deposit - Extension of time period for pre deposit - Held that:- A prayer was made by the learned counsel for the appellant to extend the time for pre-deposit. However, in the interest of justice, we extend the time to deposit the amount - Decided partly in favour of assessee.

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• 2014 (3) TMI 834 - PUNJAB & HARYANA HIGH COURT
  

  Waiver of pre deposit - Held that:- appellants have deposited ₹ 10 lacs and undertaken to deposit ₹ 50 lacs - Upon CESTAT being satisfied that the appellant has deposited ₹ 60 lacs, order dated 15.04.2013, passed by the CESTAT, dismissing the appeal, shall be deemed to have been set aside - Decided partly in favour of assessee.

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• 2014 (3) TMI 833 - CESTAT MUMBAI
  

  Denial of CENVAT Credit - Inputs not received in factory and not utilized in final product - Held that:- As the Tribunal in the case of Ajinkya Enterprises vs. CCE - [2013 (6) TMI 610 - CESTAT MUMBAI] wherein this Tribunal held that if any inputs on which the assessee has paid the duty and the same has been cleared and availed credit thereof which were cleared by them “as such” on payment of duty, the duty paid by them shall amounts to reversal of credit taken on these inputs. Therefore, in the light of Ajinkya Enterprises, the issue is no more res integra. Accordingly, I hold that the appellant is entitled to take credit on bought-out items which have been cleared on payment of duty - Decided in favour of assessee.

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• 2014 (3) TMI 832 - CESTAT NEW DELHI
  

  Duty demand - Penalty under Rule 25(1) of the Central Excise Rules, 2002 - Interest paid before personal hearing - Held that:- appellant had paid the differential duty under supplementary invoices on the escalation amount received in respect of goods cleared and this had been done on their own. The original Adjudicating Authority also has treated the failure to pay the interest at the time of payment of duty under supplementary invoices, as default under Rule 8 of the Central Excise Rules. However, for failure to pay interest alongwith delayed payment of duty under Rule 8 no penalty is imposable under any clause of Rule 25(1) of Central Excise Rules - appellant’s failure to pay interest on the differential duty paid under supplementary invoices on the differential amount received on account of price revision does not fall in any of the contraventions. Moreover, we find that the appellant had paid the interest, in question, before the hearing of their appeal by the Commissioner (Appeals) - Decided in favour of assessee.

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• 2014 (3) TMI 831 - CESTAT NEW DELHI
  

  Availment of CENVAT Credit - Duty demand - Suo moto credit - Held that:- appellant had not taken suo motu credit but credit was taken under sanction of Scheme of Amalgamation by Hon’ble High Court of Allahabad in terms of order [2005 (3) TMI 475 - HIGH COURT OF ALLAHABAD]. Considering such aforesaid aspects and also reading para 5.18 of copy of order of Hon’ble High Court (which is a photo-copy available on record), it is understood that the appellant was granted right over the assets and had undertaken to discharge the liabilities as a transferee company as a party to Scheme of Amalgamation, Rule 10 of the Cenvat Credit Rules, 2004 permits availability of Cenvat credit to the transferee company who is present appellant - Decided in favour of assessee.

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• 2014 (3) TMI 830 - CESTAT NEW DELHI
  

  Duty demand - Whether reprinting of dial and change of strap on the duty paid watches is a repair activity or the same amounts to manufacture of a new wrist watches so as to attract duty liability again - Held that:- there is no denial of fact that apart from putting their customers logo on the dial and change of strap, no other process is undertaken on the said wrist watches. The appellate authority has held that there is intermixing of various other parts and a particular part which was originally with a particular wrist watch may find its place in another wrist watch. However, we find that the above cannot be made the basis for holding that the activity amounts to manufacture. The duty paid cleared watches were received back by the appellants and after undertaking some process on the same, wrist watches were cleared from the factory. No new product having a different name, use and character comes into existence. Wrist watches remains wrist watches in spite of dial of the watch having been embossed with the customers logo - activity undertaken by the appellant does not amount to manufacture. As such, confirmation of demand of duty against them on the said ground is not sustainable - Decided in favour of assessee.

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• 2014 (3) TMI 829 - CESTAT NEW DELHI
  

  Duty demand - Bar of limitation - Held that:- Duty of Rs. 34 lakhs initially paid by the assessee also stands availed as Modvat credit by M/s. Monga Brothers Ltd., there could be no occasion or reason available to adjust their duty liability less by Rs. 80,650/-. As such, it cannot be held that there is any suppression of facts on their part. Otherwise also, we find that the duty was paid by the appellant in the year 2001 whereas the show cause notice questioned the correctness of the cost and was issued in the year 2005. As such, we are of the view that the demand is barred by limitation and the same is not sustainable - Decided in favour of assessee.

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• 2014 (3) TMI 828 - CESTAT NEW DELHI
  

  Whether conversion of motor spirit into motor spirit power and of HSD into HSD turbojet by mixing small quantities of multifunctional additives would amount to manufacture or not - Held that:- mixing of polymers and additives to base bitumen does not result in manufacture of a new marketable commodity - Revenue has not been able to show any other contrary decision on the issue. As such, by following the earlier decision, we set aside the impugned order, confirming demand against the oil company and imposing penalties on various officials of the oil company - Following decision of CCE, Bangalore v. Osnar Chemical Pvt. Ltd. [2012 (1) TMI 27 - Supreme Court of India] - Decided in favour of assessee.

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• 2014 (3) TMI 827 - CESTAT NEW DELHI
  

  Penalty under Section 209A of the Central Excise Rules - Appellant dealing with the accounts relating to the glass tubings being manufactured by an unregistered unit rendering the same liable for confiscation - Held that:- there is no specific finding by the adjudicating authority against the appellant. Mere undertaking the work relating to purchase of raw materials and other requirements of the company cannot be held to be an offence covered under the provisions of Rule 209A unless there is a specific finding, based upon the evidence and the role played by the appellant. We find no reasons to uphold the said imposed penalty upon the appellant. The same is accordingly set aside - Decided in favour of assessee.

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• 2014 (3) TMI 826 - CESTAT CHENNAI
  

  Recovery of 8% on sale price - Amendment in Rule 57AD - Held that:- After this retrospective amendment to Rule 57AD, for clearance of exempted goods at the material time, the assessee is required to pay an amount equal to the CENVAT credit attributable to the inputs used in, or in relation to the manufacture of, exempted goods before or after the clearance of such goods along with interest from the date of clearance till the payment of the said amount - Matter remanded back - Decided in favour of Revenue.

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• 2014 (3) TMI 825 - CESTAT AHMEDABAD
  

  Denial of refund claim - Unjust enrichment - Commissioner allowed refund claim - Held that:- It does not stand contended by the revenue that the certificate given by the Chartered Accountant is not correct. Merely because the said certificate does not give the details of costing etc., will not turn it into a bad certificate. It stands clearly held by the Chartered Accountant that the assessee has not issued any supplementary invoices and have not passed on the burden to the clients. The said part of the certificate does not stand rebutted by the Revenue by referring to any evidence to the contrary - Decided against Revenue.

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• 2014 (3) TMI 824 - CESTAT NEW DELHI
  

  Benefit of exemption on HAR Cement, Refractories, Mortars & Concentrate, Prepared Refractory Bricks and Refractory Bricks under Notification No. 3/2001-C.E., dated 1-3-2001 - Revenue contends that items cannot be considered as parts of conversion device producing energy - Held that:- the claim that the impugned items should be treated as parts for manufacture of industrial device producing energy appears not convincing. As rightly held by the Commissioner (Appeals), the appellants are engaged in the manufacture of refractories material and not any machine and machinery. They are not manufacturing any non-conventional energy device or system or waste conversion device energy as understood in common parlance. Therefore, the appellant has failed to prove that the impugned items can be covered as parts of any machinery producing non-conventional energy device. Therefore, the exemption has been rightly stands rejected as unsubstantiated - Decided against assessee.

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• 2014 (3) TMI 823 - CESTAT NEW DELHI
  

  Recovery of refund already granted - overvaluation of the goods - Area based Exemption in Jammu and Kashmir - Assessee paid in excess in the first place and taken credit of the same and subsequently utilised - Benefit of Notification No. 56/2002-C.E., dated 14-11-2002 - Held that:- burden to prove the allegation of overvaluation is clearly on the department. Mere non-receipt of money from the buyer partly or fully cannot be the basis to conclude overvaluation. We have not been shown any other evidence in support of their overvaluation. The records do not indicate that the merchant exporter has been paid any rebate - credit taken by the applicant relates to the duty allegedly excess paid by the applicant in PLA - prima facie we do not find any merit in the order for recovery of allegedly excess paid refund and imposition of penalty - Decided in favour of assessee.

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• 2014 (3) TMI 797 - PUNJAB & HARYANA HIGH COURT
  

  Waiver of pre deposit - Tribuanl directed the appellant to pre-deposit 75% amount of duty. - Held that:- It is considered appropriate that a sum of Rs. 40 lacs be deposited as a condition precedent for hearing of the appeal which was not disputed by the learned counsel for the appellant - Extention of time for submission of pre deposit granted.

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• 2014 (3) TMI 796 - KERALA HIGH COURT
  

  Refund - period of limitation - duty was paid under protest on persuasion of department - Scope of section 11B - Held that:- Once second proviso appears in the Statute the very purpose of bringing such benefit is that if the case of applicant falls within the proviso giving rise to a benefit not to question limitation it has to be extended. In other words, no question of limitation would fall for consideration or deserves to be extended depending upon the conditional deposit when duty and interest payable if any made by the applicants. If no such liberty or protest is indicated at the time of payment of duty and interest, definitely such applicants are not entitled to claim such benefit provided under the second proviso to Section 11B.

  Computation of period of one year with reference to the relevant date is not an issue for adjudication as the very case of the appellant is such period of limitation, i.e. one year, is not applicable to his case as the duty was paid under protest. Since the duty paid by the applicant was subsequent to 20.09.1991, he is entitled to the benefit of second proviso to Section 11B, therefore the Tribunal was erroneous in setting aside the order of the first appellate authority which granted the benefit to the applicant - Decided in favour of assessee.

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• 2014 (3) TMI 795 - CESTAT MUMBAI
  

  Restoration of appeal - appeal was dismissed for not curing the defects in the appeal - Held that:- Appellant have submitted a typed copy of the order-in-original and the defects have been cured - Appeal restored subject to cost of Rs. 2000/-

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• 2014 (3) TMI 794 - CESTAT MUMBAI
  

  Constitution of panel of experts to examine / consult that, whether machinery items supplied have essential characteristic of lift when assembled - various material supplied by the appellant for installation of lift - Held that:- In view of the direction of the Hon'ble High Court, the matter had to be considered afresh and after hearing the parties, the order has to be passed in accordance with law. Therefore, the question of setting up of any panel would not arise in terms of the order passed by the Hon'ble High Court. - Panel of Chartered Engineers appointed, now disassembled - Member(T) recuses himself from case, new Member(T) appointed to preside and matter to be heard finally by Tribunal itself by hearing on two consecutive days - Matter listed for next hearing.

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• 2014 (3) TMI 793 - CESTAT MUMBAI
  

  Manufacturing activity or not - improvement in the quality of imported plywood by dipping the imported plywood into a boiling hot chemical solution consisting of Sodium Bicarbonate, Boric Acid and Copper Sulphate mixed in water and thereafter drying - Revenue contends that final product is “marine plywood” and since a new commodity with different name, character and use has emerged - Held that:- "manufacture" can be said to have taken place only when there is transformation of raw materials into a new and different article having a different identity, characteristic and use. It is well settled that mere improvement in quality does not amount to manufacture. It is only when the change or a series of changes take the commodity to a point where commercially it can no longer be regarded as the original commodity but is instead recognized as a new and distinct article that manufacture can be said to have taken place - process undertaken by the appellant does not amount to manufacture and hence the demands and penalties are set aside and both the appeals are allowed - Following decision of Commissioner of Central Excise Versus Osnar Chemical (P) Ltd. [2012 (1) TMI 27 - Supreme Court of India] - Decided in favour of assessee.

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