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Central Excise - Case Laws
Showing 1 to 20 of 317 Records
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2016 (8) TMI 1515
Rejection of refund claim/export rebate - rejection on the ground of time limitation - appeal initially filed before wrong forum - allegation that claim apparently made to the wrong Maritime Commissioner; instead of filing it before the appropriate jurisdictional Commissioner, i.e., in Bhiwadi or in Delhi where the exports took place - HELD THAT:- In this case, what the petitioners were seeking was neither revisional nor appellate relief. Rather they were seeking a benefit which was admissible to them in terms of a Statute and the Notifications issued thereunder. That they were liable to pay customs duty for the imports made is not disputed; that for such imports upon export of the ultimate produce, they were entitled to revision/rebate is also not in dispute; it is rather an entitlement. This rebate was premised upon sound public policy, i.e., encouragement of export on foreign exchange earnings. Such being the case, the considerations as well as the construction to be placed upon Section 11B which applies to all manner of refunds - whether it is in case of excess payment of duty, amounts payable where no duty is leviable or in the case of refund unrelated to levy per se would vary. In a case where refund is claimed on account of the entitlement of an application under some scheme which is conceived in the larger public interest, strict adherence to the principle that an application made within the period of time to the wrong authority but subsequently filed before the correct authority would still be considered time-barred, in our opinion, acts very unreasonably.
In the case of M.P. Steel Corporation v. Commissioner of Central Excise, [2015 (4) TMI 849 - SUPREME COURT] has surveyed the law on the subject - including Parson Tools - and concluded that the period from the cause of action till institution of appellate or revisional proceedings from original proceedings - which proved to be abortive appeal should be excluded.
The refund claims should have been adjudicated as if they had been originally filed before the authorities having jurisdiction. That rebate was premised on the basis of jurisdiction, primarily applicable for assessment is a matter of convenience in the circumstances of the case - Petition allowed.
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2016 (8) TMI 1438
Constitutional validity of Rule 8(3A) of Central Excise Rules, 2002 - bar on utilization of CENVAT Credit - Rule 25 of Central Excise Rules, 2002 - HELD THAT:- The three different High Courts of the country have already declared Rule 8(3A) of Rules, 2002 ultra vires of Constitution being unreasonable, irrational, arbitrary and violative of Article 14 of Constitution. Gujarat High Court has struck down the aforesaid Rule in INDSUR GLOBAL LTD. VERSUS UNION OF INDIA & 2 [2014 (12) TMI 585 - GUJARAT HIGH COURT] - Madras High Court has done so in M/S. MALLADI DRUGS & PHARMACEUTICALS LTD. VERSUS THE UNION OF INDIA, THE COMMISSIONER OF CENTRAL EXCISE [2015 (5) TMI 603 - MADRAS HIGH COURT] and Punjab and Haryana High Court has also taken the same view in M/S SANDLEY INDUSTRIES VERSUS UNION OF INDIA AND OTHERS [2015 (10) TMI 2455 - PUNJAB & HARYANA HIGH COURT].
Rule 8(3A) of Rules 2002 is declared violative of Article 14 of Constitution - impugned order set aside - petition allowed.
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2016 (8) TMI 1418
Jurisdiction - Held that:- Let there be a notice for final hearing returnable on 21.9.2016. We are consciously not admitting the matter, though convinced qua admission of the matter, in order to avoid the separate consideration.
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2016 (8) TMI 1400
Time limitation - service of notice - the adjudication order dated 28-12-2012 was sent by the Range Office on 21-2-2014 and the same was received on 28-2-2014. The appeal was filed on 19-3-2014 - Held that:- The proof of delivery of the order is not available in the file. Section 37C of the Central Excise Act, 1944 mandates that in case of dispatch of the order or decision through speed post, the proof of delivery has to be obtained - In this case, admittedly, the proof of delivery of the order is not available, and hence, it has to be presumed that the order sent by the Department was not received by the appellant.
Since the appeal was filed within one month from the date of its receipt, there is no delay in filing the appeal before the Commissioner (Appeals) - matter remanded back to the Commissioner (Appeals) to pass a reasoned and speaking order on the issue, after affording due opportunity of personal hearing to the appellant - appeal allowed by way of remand.
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2016 (8) TMI 1399
Penalty u/r 26 of Central Excise Rules, 2002 - Held that:- The impugned order has ordered penalty only for the reason that he has signed the declaration. In our opinion, such action by itself is not sufficient and mens rea has to be established for imposing penalty - penalty not warranted - appeal allowed - decided in favor of appellant.
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2016 (8) TMI 1387
Application for withdrawal of appeal - Revenue says that as per the policy of the Board, they propose to withdraw these appeals filed by Revenue through these miscellaneous applications - Held that:- Prayer of Revenue is allowed and the appeals are dismissed as withdrawn.
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2016 (8) TMI 1386
Prayer for withdrawal of appeal - Held that:- Prayer of Revenue is allowed and the appeal is dismissed as withdrawn - Miscellaneous application is also disposed accordingly.
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2016 (8) TMI 1376
CENVAT Credit - inputs - fabrication, erection and installation of various capital goods and supporting structures, namely pollution control equipment, conveyor support and gallery, stock house bunker and bunker support etc. - Held that:- It may be mentioned that in Rule 2(k) of the Cenvat Credit Rules, 2004 the term of “input” has been defined and Explanation 2 to Rule 2(k) of Cenvat Credit Rules, 2004 also states that “input” includes goods used in the manufacture of the capital goods, which are further used in the factory of the manufacturer. Thus, it is not necessary that the “input” exclusively be used in or in relation to the final product - credit allowed - appeal dismissed - decided against Revenue.
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2016 (8) TMI 1347
Penalty u/r 25 and section 11AC - Held that: - appellant had duly reflected the entire Service Tax liability in the periodical returns filed with the Department and accordingly it is held that there can not be any malafide intention on the part of the appellant to evade payment of Service Tax - Service Tax law provides for delayed payment of Service Tax alongwith interest which has been duly complied by the appellant - appeal allowed in part.
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2016 (8) TMI 1328
Refund claim - finalization of provisional assessment - denial on the ground of time bar and unjust enrichment - Held that: - Any duty collected in excess during the pendency of finalisation of provisional assessment is in excess of that authorized by law and must, perforce, be returned to the assessee. There is no requirement for a separate application for refund. The original authority erred in directing that a claim be filed in consequence to finalisation and the first appellate authority erred in concurring with the finding that a part of the claim was barred by limitation.
Unjust enrichment - Held that: - The appellant has produced a certificate of Chartered Accountant that the amount receivable has been shown in the accounts as ‘receivable’ and this is sufficient evidence that the incidence of duty has not been passed on.
Appeal allowed - decided in favor of appellant.
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2016 (8) TMI 1319
Misdeclaration of value of goods - cost of grey fabrics - Held that: - appellant had filed price declaration as required of him as per details given by the merchant manufacturer including the job charges. There is nothing on record to show that appellant was aware of suppression of the prices of the grey fabrics - In the absence of any evidence to point out the role of appellant in suppression of the grey fabrics, the duty liability cannot be fastened on appellant - appeal allowed - decided in favor of appellant.
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2016 (8) TMI 1314
Restoration of petition - Held that: - the appeal was dismissed on 21-11-2011 for non-compliance with the provisions of Section 35F. The order passed on 21-11-2011 was an automatic corollary of the failure of the petitioner to comply with the conditional order, dated 8-8-2011. The conditional order, dated 8-8-2011, is not under challenge. It has attained finality. Therefore, there is no way, the final order, dated 21-11-2011, can be interfered with, even while retaining the conditional order, dated 8-8-2011. Therefore, there is no point in restoring W.P. No. 7685 of 2012, as no relief can be granted to the petitioner in the said writ petition. Hence, W.P.M.P. No. 20808 of 2016 is dismissed.
Garnishee order - main grievance of the petitioner is that the respondents did not follow the procedure prescribed by Section 110A of the Customs Act, for the provisional release of the goods - Held that: - Once a demand has attained finality, there can be no challenge to the method of recovery, unless the method of recovery itself is not, in accordance with the procedure prescribed. We do not find any procedural infirmity in the method of recovery now resorted to, by the respondents. Therefore, the second writ petition, W.P. No. 3570 of 2016, is also devoid of merits and, hence, the same is dismissed.
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2016 (8) TMI 1298
Penalty u/r 25 and 26 - misutilisation of benefit of N/N. 8/2006-C.E - Held that: - it is undisputed and on record that FSPL had filed a declaration with the jurisdictional authorities of the appellant that they are functioning under N/N. 214/86-C.E. The said notification envisages manufacturing of goods in the hands of the job worker and receiving the same back and after doing some activity clear the same on payment of Central Excise duty - In the case in hand, appellant could not have imagined or visualised that the said FSPL was not undertaking any manufacturing activity at his hand despite making a declaration under N/N. 214/86. In the absence of this, the appellant was correct in pleading before the lower authorities that penalties cannot be imposed on them - appeal allowed - decided in favor of appellant.
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2016 (8) TMI 1297
CENVAT credit - supplies made to SEZ developer - whether in respect of supplies made by DTA unit to SEZ Developer prior to 13.12.2008 has to be treated as ‘exempted clearances’ as per CCR and consequently provisions of Rule 6(3) of CCR 2004 applies or not? - Held that: - reliance placed in the case of S.P. Fabricators Pvt. Ltd. Versus Commissioner of Central Excise, Belapur [2013 (9) TMI 1108 - CESTAT MUMBAI], where it was held that after enactment of the Special Economic Zones Act 2005 w.e.f. 10.02.2006 supplies to SEZ from DTA are treated as export of dutiable goods and entitled to benefit as such, including that of exception in Rule 6(6) of CCR 2004, of not requiring separate accounts of dutiable and non-dutiable inputs/services to be maintained - appeal allowed - decided in favor of appellant.
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2016 (8) TMI 1293
Non-compliance with pre-deposit - Section 35F of the Central Excise Act, 1944 - Held that: - the learned Tribunal has rightly held that there is no jurisdiction to modify its order dated 24-6-2014. The appeal filed by the appellant has been rightly dismissed for non-compliance of the provisions of Section 35F of the CEA, 1944 - appeal dismissed - decided against appellant.
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2016 (8) TMI 1284
CENVAT credit - telecom towers/erection of towers - denial on the ground that telecom towers/erection of towers are neither goods nor input for the appellant - Held that: - Installation of telecom towers are for the purpose of providing the out-put service by the appellant - Since the disputed services have been used by the appellant for erection of the telecom towers, which is used for providing the taxable output service, it will not be appropriate to deny the Cenvat benefit - appeal allowed - decided in favor of appellant.
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2016 (8) TMI 1251
Waiver of Pre-deposit - Section 35F of the Central Excise Act, 1944 - amendment brought in the section on 6-8-2014 - Held that: - there is no provision in the Central Excise Act, 1944 and CESTAT (Procedure) Rules, 1982, CESTAT circular or CBEC circular which satisfies that the amount paid in one appeal could be adjusted towards another appeal. The language of Section 35F is very clear and it says that “the Tribunal should not entertain any appeal without making the mandatory pre-deposit specified in the Section” - appellants directed to pre-deposit as per Section 35F within one month from the date of receipt of the certified copy
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2016 (8) TMI 1249
Penalty - appellant is a registered dealer but found non-existent at the time of visit - Held that: - the evidence produced by the appellant is having evidential value - the Revenue has produced inculpatory statement of various witnesses. Those witnesses have not been examined from Section 9D of the Central Excise Act, 1944. In that circumstances, the statements of witnesses have no evidential value. In these circumstances, benefit of doubt goes in favour of the appellants, therefore, the impugned order deserves no merits - penalty set aside.
With regard to the registration certificate, as the appellants itself have stopped working since 2008. Therefore, the order of withdrawal registration certificate stands confirmed w.e.f. 2008.
Appeal allowed - decided in favor of appellant.
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2016 (8) TMI 1247
Whether the order passed by the Tribunal in imposing the penalty is correct in law when there is a bona fide belief when Section 3A read with Rule 96ZP3(ii) of the Central Excise Rules were ultra vires? - Held that: - considering the judgment of Hon’ble the Supreme Court in Shree Bhagwati Steel Rolling Mills’s case [2015 (11) TMI 1172 - SUPREME COURT], wherein, the provisions of Rules 96ZO, 96ZP and 96ZQ of the Rules have been held to be ultra vires with reference to levy of interest and penalty only, in our view, interest and penalty levied on the appellant under the aforesaid provisions, cannot be sustained - appeal allowed - decided in favor of appellant.
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2016 (8) TMI 1244
Reversal of CENVAT credit - non-maintenance of separate records for taxable as well as taxable goods - Held that: - the issue is now covered by the retrospective amendment to the relevant CENVAT Credit Rules as were in force during the relevant period by virtue of Sections 69 to 73 of Finance Act, 2010 and the assessee was allowed to reverse the proportionate credit on inputs attributable to exempted products - credit allowed - appeal allowed - decided in favor of assessee.
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