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Central Excise - Case Laws
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2011 (8) TMI 1324
... ... ... ... ..... b) of Customs Act, 1962. 2. After hearing both sides, we find that the issue involved in this case is regarding inclusion of NCCD for computation of Brand rate of Drawback on the goods exported. Any appeal against these orders of Commissioner (Appeals) on this issue does not lie before this Tribunal. In view of the above, all the Stay Petitions and appeals stand disposed off as not maintainable in terms of first proviso to Section 129A(1)(b) of Customs Act, 1962. Revenue may consider moving correct forum, if they are advised to do so. Stay Petitions also stand disposed of. (Dictated & Pronounced in Court)
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2011 (8) TMI 1317
Issues involved: Interpretation of Rules 173Q(b) of Central Excise Rules regarding non-accounting of finished goods in account books.
Summary:
Issue 1: Non-accounting of finished goods under Rules 173Q(b) of Central Excise Rules
The High Court considered a reference made by the Appellate Tribunal regarding the non-accounting of 788.86 MTs of finished goods by the respondent-company, which was not recorded in the account books as required under Rules 173Q(b) of the Central Excise Rules. The substantial question of law was whether this non-accounting amounted to a contravention of Rules 53 and 173Q(b) and (d) of the Rules.
The Court referred to a similar case decided by the Apex Court in Jain Irrigation Systems Ltd. v. Commissioner of Central Excise, where it was held that confiscation of scrap, meant for recycling and not taken outside the premises, was not justified. Applying this precedent, the Court found that in the present case, the scrap in question was also intended for recycling and was not taken outside the premises. Therefore, the confiscation of the scrap and imposition of penalty were deemed illegal. The penalty of &8377;25,000 imposed on the assessee was not challenged and hence upheld.
In conclusion, the High Court answered the reference in favor of the respondent, holding that the non-accounting of finished goods did not amount to a contravention of the relevant Rules based on the interpretation provided by the Apex Court's decision in a similar case.
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2011 (8) TMI 1303
... ... ... ... ..... ay condoned. The Special Leave Petition is dismissed.
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2011 (8) TMI 1297
... ... ... ... ..... statement given by the respondents' counsel and pleading on record, we dispose of the writ petition permitting the petitioner to represent his cause to the competent authority, who shall look into the matter and take a decision with regard to the disputed articles and passed a reasoned and speaking order expeditiously and preferably say within a period of four months from the date of receipt of a certified copy of the present order and communicate the decision to the petitioner. While deciding the representation, the respondents shall take into account the order dated 06.03.1978 passed by the Assistant Collector, Central Excise Division, Lucknow. Subject to above, the writ petition is disposed of finally.
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2011 (8) TMI 1263
Issues involved: Dispute over refund of duty paid for Waste and Scrap of Cables, unjust enrichment, applicability of legal precedents.
Refund of Duty Dispute: The reference under Section 35H of the Central Excise Act, 1944 was made by the revenue against an order dismissing the appeal by the Commissioner of Central Excise, Kolkata-III. The dispute revolved around the claim of refund by the respondent for Waste and Scrap of Cables. Initially, there was a question of whether such materials were excisable, which was resolved in favor of the respondent by the Assistant Commissioner's order. Subsequently, the respondent applied for a refund of duty paid under protest, which was rejected by the Assistant Commissioner citing unjust enrichment. The Commissioner (Appeals) later allowed the appeal, stating that there was no unjust enrichment as the assessee had paid the duty from their own pocket. The Tribunal upheld this decision, emphasizing that the revenue failed to produce evidence to the contrary.
Unjust Enrichment: The issue of "unjust enrichment" was a key point of contention. The Tribunal affirmed the findings of the Commissioner (Appeals) that there was no unjust enrichment on the part of the assessee. The purchaser had specifically offered to buy the items at a set price without any obligation to pay excise duty, which the assessee accepted. Despite the revenue demanding excise duty, the assessee bore the cost without passing it on to the customer. Both the Commissioner (Appeals) and the Tribunal relied on evidence provided by the assessee, including original offers, customer affidavits, and letters, to support the claim of no unjust enrichment. The courts found that the revenue did not present any evidence to counter these claims, leading to the affirmation of the decision in favor of the assessee.
Applicability of Legal Precedents: The appellant argued that a previous Supreme Court decision should not have been relied upon by the Tribunal due to a subsequent conflicting decision. However, the High Court held that until the earlier decision is overruled by a larger Bench, it remains binding. Despite this argument, the Court emphasized that the question of law raised by the appellant was irrelevant in this case, given the factual findings on unjust enrichment. Ultimately, the Tribunal's decision to uphold the refund of excise duty to the assessee was deemed appropriate, and the reference was dismissed with no order as to costs.
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2011 (8) TMI 1262
... ... ... ... ..... heir claim. 8. Though various contentions are sought to be raised on behalf of the appellants once the basic facts establishing clandestine removal of the goods having been clearly established by the department, and the appellants having failed to disprove the said case against the department merely by referring to numerous reported cases, it would not justify or warrant interference by the Tribunal in the impugned order. Each case will have to be considered on the facts of the particular case. Undoubtedly, the charge of clandestine removal is a serious charge and has to be established by cogent evidence. In the case in hand, the materials referred above are more than sufficient to establish the case of the clandestine removal of the goods by the appellants and failure of the appellants to pay the duty on such goods. In our considered opinion, therefore, there is no case made out for interference in the impugned order and hence the appeals fail and are hereby dismissed.
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2011 (8) TMI 1258
Issues involved: Appeal against the order of Customs, Excise and Service Tax Appellate Tribunal rejecting appellant's appeal regarding inadmissible credit on capital goods imported under DEPB Scheme.
Summary:
Issue 1: Limitation for issuance of show cause notice
The appellant appealed against the order rejecting their appeal on the grounds of suppression of material fact and limitation for issuance of show cause notice. The Adjudicating Authority confirmed the demand, but the Commissioner (Appeals) set it aside citing limitation. The appellant argued that the show cause notice was within the limitation period of five years for suppression of facts. However, the Tribunal held that there was no suppression of fact, relying on a decision of the Gujarat High Court. The Court agreed with the Tribunal's finding, stating that no substantial question of law arises as the show cause notice was issued beyond the limitation period of one year.
In conclusion, the Court dismissed the appeal, affirming the order under appeal.
Keywords: Customs, Excise and Service Tax Appellate Tribunal, inadmissible credit, DEPB Scheme, show cause notice, limitation, suppression of fact, Central Excise Act, finding of fact, Gujarat High Court decision, substantial question of law, dismissal of appeal.
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2011 (8) TMI 1253
... ... ... ... ..... to drop the demand of duty payable by the petitioner. The other contentions of the petitioner that the penalty cannot be imposed; demand of interest under Section 11AC of the Act, 1944 is not sustainable; that appropriation of duty along with interest from the amount due from the petitioner is illegal; that quantification of duty payable by the petitioner is incorrect and other contentions supra are devoid of merit. 18. Having due regard to the facts and circumstances narrated hereinbefore, we do not find any error in the impugned order warranting interference by this Court. As a result, we do not find any merit in the writ petition, which is liable to be dismissed. 19. The Writ Petition is accordingly dismissed. However, it is left open for the petitioner to file an appropriate application as stated supra, under Rule 21 of the Rules, 2002 for remission of payment of central excise duty on the alleged loss of SKO if so advised. There shall be no order as to costs.
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2011 (8) TMI 1244
... ... ... ... ..... arned counsel for the Revenue, we have taken a decision on merits. In view thereof, there can be no question of a recall of the decision which has already been taken on the merits. Dismissed.
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2011 (8) TMI 1164
Issues involved: Delay in filing appeal, waiver of pre-deposit of duty and penalty, power of Commissioner (Appeals) to condone delay.
Delay in filing appeal: The applicant sought condonation of a 109-day delay in filing the appeal due to the Consultant's road accident, supported by a medical certificate. The Tribunal accepted the reason and condoned the delay, allowing the appeal to proceed.
Waiver of pre-deposit of duty and penalty: The applicant also filed for waiver of pre-deposit of duty and penalty, which was not specifically addressed in the judgment.
Power of Commissioner (Appeals) to condone delay: The Commissioner (Appeals) had dismissed the appeal as time-barred, citing the limitation period under the Central Excise Act. Referring to a Supreme Court decision in Singh Enterprises vs. CCE, it was held that the Commissioner (Appeals) lacks the authority to condone delays beyond the Act's prescribed period. As the appeal was filed beyond the condonable period, the Tribunal dismissed the appeal and the stay petition.
This judgment highlights the importance of adhering to statutory timelines in filing appeals under the Central Excise Act and the limitations on the Commissioner (Appeals) in condoning delays beyond the specified period.
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2011 (8) TMI 1150
... ... ... ... ..... his juncture, Mr. Santhanam submitted that as this Court has dismissed the writ petition, the respondents are likely to take an adverse view of the matter and may feel that there has been adjudication on the merits or an expression of opinion. When this Court had categorically stated that no opinion is expressed, it is expected from the authorities that they should not even remotely harbor the idea that there has been any delineation on the stand and stance put forth by the petitioner from any quarter. 8. Mr. Santhanam submitted that the adjudicating authority may not supply the relevant documents to the petitioner. Without expressing any opinion on this, liberty is granted to the petitioner to file an appropriate application before the adjudicating authority for supply of relevant documents. 9. Regard being had to the aforesaid analysis, we are not inclined to review the order passed on earlier occasion and, accordingly, the application for review stands rejected.
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2011 (8) TMI 1131
Issues Involved: The issues involved in the judgment are determination of interest on duty payable, applicability of Rule 57-I (3) of Central Excise Rules 1944, and the liability of the appellant for interest on defaulted duty payment.
Determination of Interest on Duty Payable: The appellant argued that the interest calculated in Annexure A to the show cause notice is not leviable on them as the liability arose only on the day the appeal was finally decided. The appellant contended that Rule 57-I (3) of Central Excise Rules 1944 was not prevalent when the show cause notice was issued, making the demand unenforceable against them.
Applicability of Rule 57-I (3) of Central Excise Rules 1944: The Departmental Representative supported the first appellate order, stating that interest on duty becomes due from the date of default till the payment to the Government. Referring to a Tribunal decision and the Apex Court decision in Escape India Ltd. case, it was argued that the manner in which interest is levied was correct.
Liability of the Appellant for Interest on Defaulted Duty Payment: After hearing both sides and examining the records, the Tribunal found an admitted default in the case where duty was not paid on the due date. The Tribunal emphasized that the right to interest follows the right to restoration, as per Section 11AA of the Central Excise Act, 1944. The Tribunal highlighted the importance of timely payment of public revenue for public welfare and confirmed the first appellate order, dismissing the appeal.
[Dictated & Pronounced in the open Court].
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2011 (8) TMI 1111
100% EOU - appellant received 737 drums/barrels of finished goods from their Berhampur warehouse. Out of these, 566 drums of finished goods became unfit for human consumption - petitioner submit that the appellant intimated about spoiled goods in 737 drums well in advance and, as the department delayed inspection, the appellant had to destroy the same along with 198 more drums received subsequently because of the objection of the villagers regarding sanitation problems
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2011 (8) TMI 1096
... ... ... ... ..... al Excise, Shillong vs. M/S Dharampal Satyapal Ltd, Guwahati). We heard these writ petitions along with that Reference. For the reasons given in C. Ex. Ref. No.1/2009, it must be held that Education Cess on goods is not exempted under Notification No.32/99-CE dated 8-7-1999 and that CENVAT credit on Education Cess can be utilised under the CENVAT Credit Rules, 2004 only towards payment of Education Cess. The writ petitions are accordingly dismissed.
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2011 (8) TMI 1093
Issues involved: Recovery of wrongly availed CENVAT credit u/s Rule 11(2) of CENVAT Credit Rules, 2004 and imposition of penalty.
The judgment by the Appellate Tribunal CESTAT CHENNAI dealt with the case where the assessees availed exemption u/s Notification No. 8/2003-CE and MODVAT credit without paying duty on finished goods and inputs, leading to a show-cause notice for recovery of wrongly availed CENVAT credit and penalty. The lower appellate authority had earlier set aside the demand and penalty, citing a decision by the Larger Bench of the Tribunal. The Revenue appealed this decision.
The Tribunal, after hearing both sides, referred to the apex court's decision in Albert David Ltd. vs Commissioner, which upheld that CENVAT credit shall not be allowed on inputs used in the manufacture of wholly exempted goods. The Tribunal reproduced relevant extracts from its order, emphasizing that CENVAT credit is not permissible for inputs used in the manufacture of exempted goods. The Tribunal also distinguished a previous decision and highlighted the provision for recovery of wrongly utilized CENVAT credit u/s Rule 57 AD.
The Tribunal further noted that the apex court's decision in Albert David has been followed in other cases, emphasizing the need to adhere to this precedent. Consequently, the impugned order was set aside, and the appeal was allowed in relation to duty demand. However, the Tribunal found that no penalty was warranted in this case, as the issue primarily revolved around the interpretation of MODVAT rules.
In conclusion, the appeal was partly allowed by the Tribunal, pronouncing the decision on 18-08-2011.
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2011 (8) TMI 1091
Whether the liability for payment of an amount equal to 8 % of the value of the exempted goods u/r 6(3)(b) of CCR 2002/2004 can be fulfilled by mere reversal of credit involved in the inputs contained in the exempted product? - Held that: - Rule 6(3)(b) of the CCR 2004 provides that if the exempted goods are other than those described in condition (a), the manufacturer shall pay an amount equal to ten percent of the total price, excluding sales tax and other taxes if any, paid on such goods, of the exempted final product charged by the manufacturer for the sale of such goods at the time of their clearance from the factory -
We do not find substance in the contention of the department-appellant that the Company cannot reverse the credit until separate accounts were maintained, for which no finding has been recorded by the Tribunal - Rule 6(3)(b) is not attracted in the present case.
Appeal dismissed - decided against Revenue.
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2011 (8) TMI 1088
Waiver of pre deposit - exemption Notification No. 5/98-C.E., dated 2-6-1998, 5/99-C.E., dated 28-2-1999, 6/2000-C.E., dated 1-3-2000 and 3/2001-C.E., dated 1-3-2001 - appeal dismissed for non compliance.
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2011 (8) TMI 1087
Duty demand - Clandestine removal of goods - Assessee had indulged in the activity of manufacturing, transporting, depositing or in any other manner indulge in manufacturing and removing of excisable goods namely impregnated diamond scalves in contravention of provisions of rules and thereby rendered themselves liable for penal action under Rules 173Q(1) and 209A of the Central Excise Rules.
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2011 (8) TMI 1081
Condonation of delay - petitioner was granted liberty by CESTAT, who refused to condone the delay, to approach revisional authority, who can condone the delay if thinks fit and proper - matter on remand.
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2011 (8) TMI 1076
Issues involved: Determination of whether rectified spirit manufactured from duty paid molasses is a final product, emergence of both dutiable and exempted goods during processing of molasses, and applicability of Rule 6(3)(a) of Cenvat Credit Rules, 2004.
Rectified spirit classification: The appeal by the Revenue challenged the order of the Customs, Excise and Service Tax Appellate Tribunal, which allowed the appeal filed by the respondent/assessee regarding the classification of rectified spirit manufactured from duty paid molasses.
Jurisdiction of High Court: The High Court, referring to a previous decision, held that disputes related to duty payable on goods, assessment value, goods classification, exemptions, excisability, manufacturing processes, and tariff item fall under the jurisdiction of the Supreme Court, not the High Court under Section 35G of the Central Excise Act, 1944.
Disposal of appeal: Based on the precedent, the High Court concluded that the appeal was not maintainable under Section 35G and directed the Revenue to file an appeal before the Supreme Court under Section 35L of the Central Excise Act. Consequently, the appeal was disposed of with this direction.
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