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Central Excise - Case Laws
Showing 161 to 168 of 168 Records
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2016 (5) TMI 85 - DELHI HIGH COURT
Waiver of pre-deposit - Constitutional Validity of Section 35F of the CE Act - Mandatory provision to deposit 7.5% of the demand of duty and penalty for entertainment of appeal - No pre-deposit had been made till that date - Held that:- this Court is not inclined to entertain a challenge to the constitutional validity of Section 35F of the CE Act. As the petitioner having failed to comply with the statutory mandatory requirement, the CESTAT was right in dismissing the Petitioner's appeal by its order. This Court is unable to accede the request of the petitioner that it is great financial difficulty and only needs some more time to pay the pre-deposit amount. Also it is not possible for the Court, in exercise of its jurisdiction under Article 226 of the Constitution, to modify the mandatory conditions set out in Section 35F of the CE Act on any ground whatsoever. - Decided against the petitioner
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2016 (5) TMI 84 - ALLAHABAD HIGH COURT
Clandestine removal - excess quantity of molasses - demand of duty is based on an assumption that declaration of excess quantity of molasses by the appellant is indicative that the appellant must have purchased and crushed the additional quantity of sugar cane and that corresponding quantity of sugar was manufactured and cleared clandestinely. - Held that:- mere fact that the volume of molasses has increased after the closure of the factory, i.e., after the manufacturing of sugar comes to an end cannot lead to a presumption of clandestine manufacture of sugar and consequently, removal of sugar without payment of duty nor can it lead to a presumption that a fraud has been played by the appellant. There should also be clinching evidence in the nature of purchase of raw material, i.e., sugarcane, use of electricity, removal of the final product, i.e., sugar and its sale but such evidence is missing. Also no investigation in this regard has been made by the Department. It is a known fact that if there was excess production in which case there would be excess consumption of electricity, which fact was not examined by the Department. Consequently, on the basis of presumption, a serious charge of clandestine manufacture and removal of sugar has been imposed, which is wholly erroneous.
The charge of clandestine removal of sugar is required to be discharged by the Department by production of sufficient and tangible evidence, which in the instant case was lacking. In the absence of any evidence of extra consumption of electricity purchase of extra raw material, absence of evidence of extra goods being manufactured, we are of the opinion, that no case is made out for clandestine manufacture of sugar and its removal. By applying the judgment of Division Bench of this court in the case of Continental Cement Company vs. Union of India [2014 (9) TMI 243 - ALLAHABAD HIGH COURT], the demand of duty on the ground of clandestine removal cannot be recovered on the basis of presumptions and assumptions. Clinching evidence is required with regard to purchase of raw materials, use of extra electricity, sale of final products and realisation of sale proceeds before imposing any demand. As in the absence of any such evidence demand cannot be imposed. Therefore, the payment of duty, interest and penalty consequently cannot be sustained and are set aside.
Once a finding has been given by the Tribunal that there has been no suppression or misstatement by the appellant under Section 11-A of the Act, consequently, imposition of penalty under Section 11-AC of the Act does not arise. The provision of Section 28(1) and Section 114-A of the Customs Act being pari materia with the provision of Section 11-A and Section 11-AC of the Act by applying the decision of Hon'ble Supreme Court in the case of ECE Industries Limited vs. Commissioner of Central Excise, New Delhi [2003 (3) TMI 136 - SUPREME COURT OF INDIA] and Commissioner of Customs, Mumbai vs. M.M.K.Jewellers [2008 (3) TMI 5 - SUPREME COURT]. - Decided in favour of appellant
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2016 (5) TMI 11 - GUJARAT HIGH COURT
Maintainability of appeal before the High Court - Question relating to availability of exemption notification versus question relating to Determination of rate of duty of excise or the value of goods for assessment - SSI Exemption - Held that:- Section 35G of the Act expressly excludes orders passed by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment. Correspondingly, section 35L of the Act provides for appeal to the Supreme Court against an order passed by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment. Thus, on the conjoint reading of sections 35G and 35L of the Act, it is crystal clear that an appeal shall not lie before the High Court against an order passed by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment.
Whether the clearances made by the respondent for the period under consideration, in fact, exceeded the limit stipulated under the exemption notification or were within such limit - Held that:- the question of applicability of the exemption notification does not arise, inasmuch as, it is not the case of the revenue that the assessee is not entitled to the benefit of the exemption notification. At the cost of repetition, it is reiterated that the only question that arises for consideration in these appeals is as to whether the clearances made by the assessee for the period under consideration have exceeded the limit specified for being entitled to the exemption notification. The controversy involved in the present cases does not relate to the determination of any question having a relation to the rate of duty or value of goods for the purposes of assessment, and as such, the appeals have rightly been filed before this court under section 35G of the Act. - Decided against the revenue
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2016 (5) TMI 10 - GUJARAT HIGH COURT
Cenvat credit on the inputs on the basis of documents endorsed by the consignee - Duty paying document - Availing modvat credit on duty paid inputs under Rule 57A of the Central Excise Rules, 1944 - Held that:- in exercise of powers under Rule 57G of the Central Excise Rules, 1944, the Central Government under notification dated 30.3.1994 prescribed invoices issued by a manufacturer from his factory or depot or wholesale distributor or dealer of a manufacturer who has bought the excisable goods either from the manufacturer at the factory or from the manufacturer's depot or an importer from his godown subject to certain conditions, as document for the purpose of said Rules.
Likewise, under notification dated 4.7.1994, the Central Government had prescribed invoices issued by a manufacturer from the factory or his depot or dealer of an excisable goods registered with the Central Excise Officer or an importer from his godown or dealer of an imported goods registered with the Central Excise Officer containing the details, as are prescribed under Rule 57GG as the documents for the purpose of Rule 57G. In other words, subject to fulfilling the conditions provided in the said notifications, the invoices issued by the said category of persons would qualify a manufacturer to avail cenvat credit on the inputs used. This decision was completely lost sight of by the Tribunal. We find that major changes were made in the procedure prescribed in availing cenvat credit. By virtue of such changed procedure, only upon the invoices being issued under Rule 52A, the cenvat credit, on the strength of such documents could be availed by the manufacturer. The Tribunal thus committed an error. Therefore, the decision of the Tribunal is reversed. - Decided in favour of revenue
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2016 (5) TMI 9 - BOMBAY HIGH COURT
Seeking direction for grant of interest - Deposited voluntarily till the date of actual payment under Section 11B of the Central Excise Act, 1944 - Appellant submitted that interest is due and payable from the date of the application seeking refund till the date of payment. Also once there is an order of refund of duty and which is traceable under sub-section (2) of Section 11B, then to the Applicant to whom this amount is not refunded within three months from the date of receipt of the application under sub-section (1) of that Section, there shall be paid interest not below five per cent and not exceeding thirty per cent per annum as is for the time being fixed by the Central Government by notification in the Official Gazette.
Held that:- once the Assistant Commissioner approached the matter in terms of Section 11B of the Act but the amount as directed to be refunded was not refunded within the time provided by the statutory provision, that, this is a fit case to award interest that is to be awarded for delayed refund. If the duty ordered to be refunded under sub-section (2) of Section 11B is not refunded within three months from the date of receipt of the application under subsection (1) of Section 11B of the Act, then, the award of interest must follow as mandated by Section 11BB(1) of the Central Excise Act, 1944. In the present case, the application made for refund under Section 11B is dated 4th October 2006. The amount of refund as directed in terms of the order dated 28th April 2015 has been disbursed and paid on 28th April 2015 by RTGS. Therefore, the Petitioners are entitled to interest at the rate of 6% from the expiry of the period of three months from the date of the application, meaning thereby the amount shall carry interest at the rate of 6% per annum from 4th January 2007 to 27th April 2015. - Decided in favour of assessee.
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2016 (5) TMI 8 - BOMBAY HIGH COURT
100% EOU - Violation of Notification No. 53/97 and 1/95 - Manufacture of plastic bags but have to manufacture the garbage bags of plastic, plastic Rolls and recycled granules of plastic - Held that:- if the Letter of Permission dated 19 November 1997, under which permission to set up 100% export oriented unit for manufacture and export of garbage bags of plastic, enables the Appellant/Assessee to import plastic waste/scrap without payment of duty and to use the same in manufacture of specified goods as per the Letter of Permission, then, demand of duty on the ground that the Appellant has not manufactured garbage bags of plastic but plastic bags which are used for packaging textile materials must be clarified and with proper reasoning.
As per modified or amended Letter of Permission, it was allowed to manufacture plastic bags. If the amendment is to be treated as retrospective in nature as per the Assessee, then we expected the Tribunal as last fact finding Authority to discuss as to whether that argument of the Assessee has any merit. It should have been clarified whether the Letter of Permission would govern the acts and transactions or deals in the present case or the substantial Notifications. We do not find in Tribunal's order any reference made to the relevant and germane material including terms and conditions of the Notifications, the Letter of Permission, its amendment and thereafter the effect of the same, inasmuch as, whether it can be termed as retrospective or otherwise. Therefore, we are not assisted in any manner by such a short and cryptic order of the Tribunal and the Tribunal's order impugned in these Appeals cannot be sustained. - Decided in favour of appellant
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2016 (5) TMI 7 - PUNJAB AND HARYANA HIGH COURT
Export of goods - Failure to furnish ARE 1 and proof of export of goods as required under Rule 19 of the Rules - Manufacture and export of hand tools through merchant exporter who applied Form H - Availed benefit of Small Scale Industries Exemption notification dated 1.3.2003 - Held that:- the impugned order was passed by the Joint Secretary to Government of India who was also Commissioner of Central Excise and Customs. Thus, the order in appeal as well as revisionary order had been passed by the officers of the same rank which is not permissible as per law. Therefore, the impugned order is set aside - liberty is granted to the State to proceed afresh in accordance with law - Decided in favor of assessee.
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2016 (5) TMI 6 - MADRAS HIGH COURT
Cenvat Credit - Classification of 'anode slime' and its unconditional exemption under serial no. 195 of Notification No. 12/2012-CE dated17.03.2012. - Held that:- in view of the Clarification issued by the Central Board of Excise & Customs, in Circular No.F.No. 871/4/2012/CX.1, dated 14.07.2015, we are not inclined to accept the contention of the Revenue. Hence, the impugned order in Original, are set aside. - Decided in favour of appellant
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