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2009 (7) TMI 1139
Benefit of Notification No. 4/2006-C.E. dated 1-3-2006 - clearances of a bulk drug “Lopinavir” - whether “Lopinavir”, an item figuring in List 3 appended to the Notification of the Govt. of India, erstwhile Ministry of Finance (Department of Revenue) No. 21/2002-Customs dated 1-3-2002 is entitled to the exemption in terms of the Sl. No. 47(A) of the Notification No. 4/2006-C.E?
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2009 (7) TMI 1138
The Appellate Tribunal CESTAT NEW DELHI ruled that the conversion of levy under Section 3(1) to Section 9 of the Customs Tariff Act, 1975 was not permissible without a Notification for the concerned goods. The original order was restored, allowing the appeal of the Revenue.
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2009 (7) TMI 1137
Issues involved: Application for waiver of pre-deposit of duty of Rs. 48,52,976/- along with interest and penalty arising from the manufacture of APS units, Props, Spans, and floor forms falling under CET sub-heading 7308 40 00 as equipment for scaffolding for the period 2004-05 to 2006-07.
Manufacture of APS units: The welding activity of verticals and horizontals with socket pipe/clamp does not amount to manufacture, hence no duty demand is justified.
Manufacture of Spans: Cutting and bending of sheets into 'C' sections do not transform the sheets into a new excisable commodity, therefore no excise duty liability arises.
Manufacture of Floor Forms: Cutting and knotching of HR sheets to create floor forms do not result in a new excisable commodity, hence no duty liability is established.
Manufacture of Props: Threading, drilling, and fixing of metal plates on pipes to create props for supporting RCC beams constitutes manufacture, resulting in a new excisable commodity falling under the heading adopted by the Commissioner. However, the value of props being approximately Rs. 5 lakhs, the applicants are eligible for the benefit of SSI exemption.
Conclusion: A prima facie case has been established by the applicants for total waiver of pre-deposit of duty, interest, and penalty, leading to the stay of recovery.
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2009 (7) TMI 1136
Clandestine removal - invocation of section 11AC - Held that: - there is no contest to duty confirmation on the findings of clandestine removal by the assessee. As such, it stands established that the duty was not paid on account of suppression of facts, in which case the provisions of Section 11AC would get invoked - as per first proviso of said Section 11AC, if duty determined along with interest and 25% penalty is paid within 30 days, the balance amount of penalty is waived.
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2009 (7) TMI 1135
Issues involved: Duty demand on clearance of glass bottles without payment, application for remission of duty, mention of broken bottles in returns, Board's Circular on breakages limit.
Summary:
1. Duty Demand on Clearance of Glass Bottles:
The appellants, engaged in manufacturing aerated water, soda water, and mineral water, were found to have cleared glass bottles without payment of duty, which were broken during storage and handling. Three show cause notices were issued demanding duty of Rs. 7,50,299. The Original Authority confirmed the duty and imposed a penalty, which was later modified by the Commissioner (Appeals) to Rs. 6,31,585 based on previous Tribunal orders.
2. Application for Remission of Duty:
The appellants argued that the broken bottles during storage and handling were 0.15% and were mentioned in their returns. They submitted that the application for remission of duty was filed in accordance with Board's Circular, which does not require a formal application. They cited relevant Tribunal decisions and Circulars to support their case.
3. Mention of Broken Bottles in Returns:
The Revenue contended that the appellants did not file any application for remission of duty or inform the department about the breakage of glass bottles. They argued that proper documentation and intimation were necessary to claim remission of duty, especially for losses exceeding the prescribed limit.
4. Board's Circular on Breakages Limit:
The Tribunal noted that the appellants had mentioned the quantity of broken glass bottles in their returns, as per the Board's Circular allowing a tolerance limit of 0.5% for breakages. The Tribunal found that the appellants' claim was bona fide and correct, considering the insignificant quantity of losses and compliance with the Circular.
Conclusion:
After considering the arguments and evidence presented, the Tribunal set aside the impugned order, allowing the appeal with consequential relief. The Tribunal emphasized the importance of compliance with the Board's Circular on breakages and upheld the appellants' claim based on previous Tribunal decisions and the factual evidence provided.
(Order dictated and pronounced in open court on 17-7-2009)
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2009 (7) TMI 1134
Refund in cash - unutilised CENVAT credit - closure of factory - Held that: - The Tribunal in the case of DCM Fabrics [2008 (11) TMI 525 - CESTAT, ,NEW DELHI] following the decision of the Hon’ble Karnataka High Court in the case of UOI v. Slovak India Trading Co. Pvt. Ltd., [2006 (7) TMI 9 - KARNATAKA HIGH COURT] held that the assessee’s factory is closed and surrendered their central excise registration and the CENVAT credit would be refunded in cash - refund allowed - appeal dismissed - decided against Revenue.
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2009 (7) TMI 1133
Issues Involved:
1. Condonation of Delay in Filing Appeals
2. Jurisdiction of Commissioner (Appeals) to Condon Delay Beyond Statutory Period
3. Merits of the Case and Alleged Suppression of Production
Summary:
1. Condonation of Delay in Filing Appeals:
The appellants challenged the order dated 18-12-2008 by the Commissioner (Appeals), Delhi, which dismissed their appeals due to delay in filing. The appellants argued that their factory closure and misplacement of documents by their Advocate caused the delay. The Commissioner (Appeals) found no sufficient cause for the delay and dismissed the appeals.
2. Jurisdiction of Commissioner (Appeals) to Condon Delay Beyond Statutory Period:
The respondents contended that the Commissioner (Appeals) could only condone a delay of up to 30 days beyond the prescribed period, as per the Supreme Court's decision in Singh Enterprises v. CCE, Jamshedpur. The Tribunal noted that the High Court of Punjab and Haryana had directed the Commissioner (Appeals) to consider the condonation request without imposing restrictions on the period. However, the Commissioner (Appeals) adhered to the statutory limit, finding no sufficient cause for the delay.
3. Merits of the Case and Alleged Suppression of Production:
The appellants argued that their case had merit and that the duty liability was based solely on balance sheet figures, which should not be the basis for imposing duty. The Tribunal found that the appellants had multiple opportunities to present their case but failed to do so. The Tribunal also noted that the appellants did not provide sufficient evidence to support their claim of misplacement of documents by their Advocate. The Tribunal concluded that the Commissioner (Appeals) did not err in dismissing the appeals for lack of sufficient cause for delay.
Conclusion:
The Tribunal upheld the Commissioner (Appeals)'s decision, dismissing the appeals due to the appellants' failure to show sufficient cause for the delay in filing. The Tribunal emphasized the statutory limits on condoning delays and the appellants' lack of diligence in pursuing their case.
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2009 (7) TMI 1132
Issues involved: Interpretation of conditions for availing concessional rate of duty under Notification No. 6/2000-C.E. and Notification No. 3/2001, and imposition of penalty for non-compliance.
The judgment by the Appellate Tribunal CESTAT AHMEDABAD involved a case where the appellant, engaged in manufacturing Dyed Twisted Yarn, faced a dispute regarding the availing of concessional duty rates. The appellant procured raw material, Polyester Texturised/Crimp Yarn, paid duty on it, and converted it into twisted polyester yarn for use in manufacturing dyed twisted polyester yarn. The Revenue contended that since the dyed twisted yarn was made from non-duty paid twisted yarn, the concessional duty rates did not apply. Consequently, a show cause notice was issued proposing a demand of differential duty, interest, and penalty. The Commissioner confirmed the demand and imposed penalties, which were challenged before the Tribunal.
Upon considering the submissions, the Tribunal noted that the appellant had indeed met the conditions required to avail the benefit of the notifications in question. The conditions specified that the yarn must be manufactured from duty-paid yarn and no credit under certain rules should have been availed during the manufacturing process. The Revenue argued that the conditions were not fulfilled as the dyed twisted yarn was made from non-duty paid twisted yarn. In contrast, the appellant contended that the starting raw material, duty-paid texturised yarn, was used, and no credit was availed. The Tribunal agreed with the appellant, emphasizing that the duty-paid texturised yarn was the basic raw material, and using it to manufacture twisted yarn, which was then used in making dyed yarn, satisfied the notification's conditions.
The Tribunal referenced a previous decision involving a similar condition in a different notification to support its interpretation. In that case, it was held that manufacturing dyed yarn from duty-paid single yarn, even if an exemption was availed at an intermediate stage, still qualified for exemption. Applying this precedent, the Tribunal concluded that the appellant had fulfilled the notification's conditions, and the demand for duty was unjustified.
Additionally, the Tribunal found that the demand was time-barred as it was raised beyond the normal one-year period. The appellant had declared and recorded the concessional duty availed, and the Tribunal disagreed with the Commissioner's view that this constituted misdeclaration. It was clarified that claiming exemption did not amount to misrepresentation, and there was no intent to evade duty. Therefore, the appeals were allowed on merit and limitation, providing relief to the appellants.
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2009 (7) TMI 1131
Issues involved:
The issues involved in this case include the import of goods without a Special Import Licence, confiscation of goods under Section 111(d) and 111(o) of the Customs Act, imposition of penalties under Section 112(a) of the Customs Act, abetment in the commission of the offence, and the liability of various parties involved in the import process.
Confiscation of Goods:
The goods imported without a Special Import Licence were found to be in contravention of the Customs Act, 1962 and the Exim Policy. The Commissioner ordered the confiscation of the goods valued at Rs. 69,78,090/-, which were cleared against a forged Special Import Licence. The goods were redeemed on payment of a redemption fine of Rs. 10,00,000/- by the importer under Section 125 of the Customs Act, 1962.
Imposition of Penalties:
Penalties were imposed on M/s. Cannaught Plaza Restaurant Ltd. under Section 112(a) of the Customs Act, 1962, amounting to Rs. 3,00,000/-. No penalty was imposed on Shri Jagdish Agarwal of M/s. Cannaught Plaza Restaurant Ltd. due to lack of direct evidence of his abetment in the offence. Additionally, penalties were imposed on M/s. Chanchal Cargo Agents and Shri Mahendra Shah under Section 112(a) of the Customs Act, 1962.
Challenge and Defence:
The importer challenged the penalties imposed, arguing lack of evidence showing awareness of the forged licence at the time of importation. The importer claimed to be a bona fide purchaser of the licence without mens rea. The broker and CHA defended themselves by stating they were not aware of the forged nature of the licence and were following instructions in genuine transactions.
Judgment and Disposition:
The Tribunal found the imported goods were liable to confiscation due to the use of a forged licence. While the redemption fine was set aside, a reduced penalty of Rs. 1.5 lakhs was upheld for the importer. The penalties on the broker and CHA were vacated as there was no evidence of their involvement in the offence. The appeals were disposed of accordingly.
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2009 (7) TMI 1130
Confiscation - Buff upper finished leather - penalty - Held that: - Since there is no intention to export prohibited goods and the goods have been only allowed to be taken back for re-processing, there is no reason to interfere with the impugned order which is accordingly upheld - confiscation and penalty set aside - appeal dismissed - decided against Revenue.
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2009 (7) TMI 1129
Issues Involved:
- Entitlement to quantity discount for manufacturers of pressure cookers and pressure pans.
Analysis:
The central issue in the appeal was whether the manufacturers of pressure cookers and pressure pans were entitled to quantity discounts offered to customers. Initially, the adjudicating authority allowed the quantity discount, but the Commissioner (Appeals) overturned this decision, siding with the Revenue. The main contention revolved around whether the free items provided with the purchase of cookers and pans could be considered as trade discounts or not.
Upon hearing both parties, the Tribunal delved into the legal precedents cited by the Commissioner (Appeals) and the appellants. The Tribunal noted that the decision in Pearl Drinks Ltd. v. CCE, Delhi, which the Commissioner (Appeals) relied on, was not directly applicable to the present case. The Tribunal referenced the case of Surya Food and Agro Ltd. v. Commissioner to establish that the free supply of certain items along with the sale of others does not necessarily increase the assessable value of the goods sold. In this context, the Tribunal found that the value of pressure pans was already included in the value of pressure cookers, a point not contested by the Revenue.
Based on the legal analysis and the specific circumstances of the case, the Tribunal concluded that the assessees were indeed eligible for the quantity discount. Therefore, the impugned order was set aside, and the appeal by the assessees was allowed. The Tribunal restored the adjudication order in favor of the assessees, confirming their entitlement to the quantity discount offered to customers. The decision was dictated and pronounced in open court, bringing a resolution to the dispute regarding the admissibility of the quantity discount for the manufacturers of pressure cookers and pressure pans.
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2009 (7) TMI 1128
Issues: Misdeclaration of imported machinery value, confiscation, penalty
In the case before the Appellate Tribunal CESTAT CHENNAI, the appellants imported a used second-hand Offset Printing Machine with a misdeclaration of value. The Commissioner noted that a similar machine imported earlier was assessed at a much higher value, and the importer admitted to lacking evidence for the declared value. The Commissioner granted abatement and fixed the assessment value lower than the declared value, considering the value of a new machine as a reference point. The goods were confiscated for misdeclaration, with an option for redemption upon payment of a fine and a penalty imposed. The appeal challenged these decisions.
The Tribunal considered the Commissioner's approach of basing the value assessment on the value of a new machine and extending abatement. The Tribunal also acknowledged the importer's claim of importing the machine for actual use and directed them to provide written assurance of installation at the specified location. The Tribunal upheld the enhanced value determined by the Commissioner, as well as the confiscation and penalty due to the misdeclaration. Consequently, the impugned order was upheld, and the appeal was rejected.
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2009 (7) TMI 1127
Issues involved: Interpretation of Rule 6(3) of Cenvat Credit Rules, 2004 regarding payment obligations for manufacturers of both dutiable and exempted goods without separate accounts.
Summary:
The Appellate Tribunal CESTAT Chennai, comprising Ms. Jyoti Balasundaram and Dr. Chittaranjan Satapathy, waived the predeposit of duty amount confirmed for the appellants and proceeded to hear the appeal due to a settled issue in favor of the assessees based on a previous case. The department contended that Rule 6(3) of Cenvat Credit Rules, 2004 required manufacturers to pay a certain percentage for exempted final products if separate accounts were not maintained. However, the Tribunal referred to a previous case where it was held that certain elements like transportation, laying, jointing, testing, and commissioning should not be considered part of the price of goods at the factory gate. Consequently, the Tribunal set aside the impugned order, ruling that freight and insurance charges should not be included in the assessable value for the purpose of payment under Rule 6(3), thereby allowing the appeal.
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2009 (7) TMI 1126
Clandestine removal - stock found in excess - Held that: - mere non-accountal of goods in RG-1 register would not invite confiscation of the same or imposition of any penalty unless there is an evidence to show that the goods were meant for clandestine removal - apart from the initial statement of authorized signatory, there is no other independent evidence on record. This statement, when viewed in the light of the subsequently produced documentary evidence, loses its evidentiary value, as it is well settled that the documents speak louder. In view of the above, by extending the benefit of doubts to the appellant, the impugned order set aside - appeal allowed - decided in favor of appellant.
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2009 (7) TMI 1125
Issues Involved:
1. Admissibility of evidence (Mahazar and loose slips).
2. Reliability of statements and retractions.
3. Allegation of undervaluation of goods.
Summary:
Admissibility of Evidence:
The appellant-company was issued a show cause notice alleging gross undervaluation of goods and evasion of central excise duty amounting to Rs. 44,34,843/-. The adjudicating authority confirmed the demand, imposed penalties, and appropriated Rs. 5,00,000/- already paid by the appellant. The appellant challenged the admissibility of a loose slip recovered from the residence of Sri Pradeep Tantia, arguing it was not signed by witnesses or related to the appellant-company. The Tribunal found that the slip was recovered during an investigation against a different entity, M/s. Cauvery Laminates Pvt. Ltd., and lacked concrete evidence connecting it to the appellant. Thus, reliance on the slip was deemed incorrect.
Reliability of Statements and Retractions:
The appellant argued that statements from two dealers, which were later retracted, were unreliable. The Tribunal noted that the dealers had submitted affidavits retracting their statements and that other dealers, who purchased substantial quantities, had confirmed they did not pay anything over the invoice value. The Tribunal found that the lower authorities failed to prove the charges beyond doubt and that the retracted statements could not be solely relied upon.
Allegation of Undervaluation:
The Tribunal examined the evidence and found no clear connection between the recovered slip and the appellant's clearances. It also noted that statements from other dealers, which were not relied upon by the lower authorities, exonerated the appellant. The Tribunal referred to the decision in Hunsur Plywood Works Pvt. Ltd. v. CCE, Mysore, which emphasized the need for corroborative evidence to sustain charges of undervaluation. The Tribunal concluded that the evidence presented did not substantiate the charge of undervaluation.
Conclusion:
The Tribunal set aside the impugned orders, allowing the appeals with consequential relief. The reliance on the loose slip and retracted statements was deemed insufficient to prove the charges of undervaluation against the appellant.
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2009 (7) TMI 1124
Issues:
1. Imposition of redemption fine and penalty on Khandelwal Industrial Enterprises.
2. Imposition of redemption fine on Ambesh Kumar Bansal, Truck Owner.
Analysis of Issue 1:
The appeal by Khandelwal Industrial Enterprises challenges the imposition of a redemption fine of Rs. 25,000/- and penalty of Rs. 5,000/-. The firm was involved in manufacturing excisable goods for export, claiming exemption from registration and following certain procedures. However, their consignment valued at Rs. 14,34,600/- was intercepted without accompanying documents. The original authority confiscated the goods and imposed fines and penalties. The Commissioner (Appeals) upheld these decisions. The argument that exemption from registration allows for no record maintenance and transport without documents was refuted. The Tribunal found the confiscation of goods and the vehicle justified, along with the fines and penalties imposed, deeming them not excessive.
Analysis of Issue 2:
The appeal by Ambesh Kumar Bansal, Truck Owner, challenges the redemption fine of Rs. 5,000/- imposed on the vehicle used for transport. The vehicle was transporting goods without proper documents, leading to its confiscation and the imposition of the fine. The Tribunal considered the justification for confiscation of the vehicle and the fine imposed. It was concluded that the redemption fine was not excessive and was warranted in the circumstances. The penalty imposed on the applicant firm was also deemed justified and not excessive. Consequently, the appeals were rejected as they failed to establish grounds for interference with the original decisions.
This judgment highlights the importance of compliance with procedural requirements even when exemptions are claimed, emphasizing the need for maintaining records and following necessary documentation for goods transport. The Tribunal upheld the original decisions regarding confiscation, fines, and penalties, emphasizing the justifiability of the actions taken in response to non-compliance with regulatory procedures.
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2009 (7) TMI 1123
Issues:
Appeal against denial of Cenvat credit on capital goods used for reclaiming sand for manufacturing excisable goods.
Detailed Analysis:
1. Issue of Denial of Cenvat Credit: The appellant appealed against the denial of Cenvat credit on capital goods used for reclaiming sand, arguing that the reclaimed sand was further used in manufacturing resin coated sand, which is an excisable commodity. The Joint Commissioner held that since resin coated sand was not manufactured within the appellant's premises, the credit availed on the sand reclamation plant was not admissible. The appellant contended that the reclaimed sand was an intermediate product and cited various case laws to support their claim.
2. Legal Precedents: The judgment referred to several legal precedents where Cenvat credit was allowed on capital goods used in the production of non-excisable commodities that were further used in the manufacturing of dutiable products. These precedents highlighted that the critical factor was whether the intermediate product was eventually utilized in the production of excisable goods, irrespective of where the final manufacturing took place.
3. Decision and Rationale: After reviewing the case records and arguments, the Commissioner concluded that the appellant was entitled to avail Cenvat credit on the sand reclamation plant and related components. The Commissioner emphasized that the reclaimed sand, being an intermediate product, qualified for the credit, especially considering its eventual use in the production of resin coated sand, a dutiable product. The Commissioner criticized the Joint Commissioner's decision as erroneous and highlighted that denying the credit would undermine the concept of job work recognized in Central Excise laws.
4. Penalty Imposition: The Commissioner also addressed the issue of the arbitrary imposition of an equal penalty by the Joint Commissioner. It was noted that the penalty was incorrectly imposed under the wrong rule, within the normal limitation period, without proper justification, and in a situation where the appellant succeeded on the merits of the case. The Commissioner deemed the penalty imposition unsustainable and set aside the impugned order, providing consequential relief to the appellant.
In conclusion, the judgment favored the appellant, allowing the Cenvat credit on the capital goods used for reclaiming sand and rejecting the imposition of an equal penalty. The decision was based on legal precedents, the interpretation of Central Excise laws, and the fundamental principle that credit should be allowed when capital goods contribute to the production of dutiable goods, regardless of the location of the final manufacturing process.
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2009 (7) TMI 1122
Issues Involved:
1. Inclusion of the cost of laying and jointing charges of PSC pipes in the assessable value.
2. Inclusion of the cost of rubber rings in the assessable value.
3. Imposition of penalty under Rule 25 of the Central Excise Rules.
Detailed Analysis:
1. Inclusion of the Cost of Laying and Jointing Charges of PSC Pipes in the Assessable Value:
The appellant contended that the cost of laying and jointing charges at the site should not be included in the assessable value of PSC pipes. They argued that these activities are post-manufacturing processes and do not relate to the excisability of goods. The adjudicating authority, however, included these charges in the transaction value, relying on various case laws that were not directly relevant to the issue at hand. The appellant cited several precedents, including *Indian Hume Pipes Co. Ltd. v. CCE, Calcutta* (1994) and *Gordhandas Desai Ltd. v. CCE, Vadodara-I* (2005), which established that post-manufacturing activities and costs associated with immovable properties should not be included in the assessable value. The Board's Order No. 58/1/2002-CX clarified that items assembled or erected at site, which become immovable property, are not excisable goods. The adjudicating authority failed to address these points, leading to the conclusion that the cost of laying and jointing charges should not be included in the assessable value.
2. Inclusion of the Cost of Rubber Rings in the Assessable Value:
The appellant argued that the cost of rubber rings, which are bought out items and not fitted to the product at the factory, should not be included in the assessable value. The adjudicating authority included these costs, but the appellant cited cases such as *CCE v. Multiplex Packaging* (1999) and *Fujitsu Indiatelecom v. CCE* (2003), which supported their claim that bought out items supplied directly to the site should not be included in the assessable value. The adjudicating authority did not provide reasonable grounds for including these costs, and the appellant's reliance on established case laws was not addressed. Therefore, the cost of rubber rings should not be included in the assessable value of PSC pipes.
3. Imposition of Penalty under Rule 25 of the Central Excise Rules:
The adjudicating authority imposed an equal penalty under Rule 25, despite the SCN being issued within a normal period and the issue being a periodical one already known to the department. The appellant argued that the imposition of an equal penalty is only justified in cases of fraud, collusion, misstatement, or suppression of facts, none of which were present in this case. The adjudicating authority's imposition of the penalty was found to be against the spirit of the law and the basic principles of penalty imposition. Since the appellant was not liable to include the costs in the assessable value, they were also not liable for any penalty.
Conclusion:
The appeal was allowed, setting aside the impugned order passed by the Assistant Commissioner. The cost of laying and jointing charges and the cost of rubber rings should not be included in the assessable value of PSC pipes, and the imposition of the penalty was unjustified.
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2009 (7) TMI 1121
Issues Involved:
1. Legality of transferring unutilized Cenvat credit without physical transfer of inputs or capital goods.
2. Interpretation and application of Rule 10 of the Cenvat Credit Rules, 2004.
3. Imposition of penalty and interest under Section 11A and 11AC of the Central Excise Act.
Detailed Analysis:
Issue 1: Legality of Transferring Unutilized Cenvat Credit Without Physical Transfer of Inputs or Capital Goods
The appellant, engaged in manufacturing centrifugal pumps and electric motor parts, transferred unutilized Cenvat credit from its Dadra unit to its Shindewadi unit. The department alleged that the credit transfer was invalid without physical transfer of goods, leading to a Show Cause Notice (SCN) and subsequent confirmation of demand, interest, and penalty by the Additional Commissioner.
Issue 2: Interpretation and Application of Rule 10 of the Cenvat Credit Rules, 2004
The appellant argued that:
- The order by the Additional Commissioner was legally unsustainable.
- Consistent tribunal rulings state no prior permission is needed for transferring unutilized credit when shifting factories, as per Rule 10 of the Cenvat Credit Rules, 2004.
- The transfer of unutilized credit is not contingent on the quantity of inputs or capital goods available at the time of transfer.
- The Assistant Commissioner, Silvassa's letter acknowledged the transfer of inputs and capital goods, negating the need for physical transfer at the time of credit transfer.
- The appellant had cleared all stock on payment of duty before surrendering the registration in March 2004, and the Assistant Commissioner granted permission for credit transfer in December 2006, long after the factory had shut down.
- The appellant fulfilled all conditions of Rule 10, and the Assistant Commissioner's letter confirmed the transfer of inputs and capital goods.
The appellant cited several case laws supporting their position, including:
- Aar Aay Products Pvt. Ltd. v. C.C.E., New Delhi: Held that credit transfer is permissible even without physical stock of inputs at the old premises.
- Shree Rama Multi Tech Ltd. v. C.C.E., Pondicherry: Stated that actual transfer of inputs is not necessary for credit transfer.
- C.C.E., Pondicherry v. Dr. Reddy's Laboratories Ltd.: Allowed credit transfer despite inputs being utilized before amalgamation.
- C.C.E., Pondicherry v. CESTAT: Confirmed that rule does not require credit transfer to be proportional to the quantum of inputs transferred.
The order noted that the appellant's activities were transparent and that the delay in permission was due to the department's inaction. The department's SCN and subsequent order were based on a misinterpretation of Rule 10(3), as the appellant had cleared goods on payment of duty, which should be considered equivalent to physical transfer.
Issue 3: Imposition of Penalty and Interest
The adjudicating authority imposed an equal penalty, which the appellant contested, arguing that penalty requires mens rea, which was absent as their actions were transparent and compliant with the law. The delay in granting permission was due to the department's fault, not the appellant's. Consequently, the imposition of penalty and interest was deemed unjustified.
Conclusion:
The appeal was allowed, setting aside the impugned order. The appellant was found eligible to avail the transferred Cenvat credit, and the imposition of penalty and interest was deemed inappropriate.
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2009 (7) TMI 1120
Issues:
1. Failure to make payment electronically through internet banking.
2. Imposition of penalty under Rule 27 of Central Excise Rules.
Analysis:
1. The appellant failed to make payment electronically through internet banking as required by the Central Excise Rules. The appellant contended that the facility was not available at their bank until a certain date and even after that, technical issues persisted. The appellant argued that they preferred electronic payment due to its convenience and cost-effectiveness compared to manual methods involving demand drafts. The lower authority imposed a penalty of Rs. 20,000 for the contravention. However, during the hearing, it was highlighted that the maximum penalty under Rule 27 is Rs. 5,000. The appellant's representatives emphasized that the issue was a technical violation and pointed out a similar case where the penalty was set aside for the same reason.
2. The main issue was whether the appellant was liable to pay a penalty under Rule 27 for the failure to make electronic payments. The lower authority held that since the appellant did not provide reasons for not making payments electronically, they contravened the rules. However, the appellant argued that they were willing to pay electronically but faced technical challenges at their bank. They presented evidence of the bank's inability to accommodate electronic payments until a specific date. The appellate authority found that the appellant's failure to make electronic payments was due to circumstances beyond their control, such as the bank's technical issues. The authority concluded that the appellant did not commit any wrongdoing that warranted a penalty under Rule 27. Additionally, the authority questioned the basis for the Assistant Commissioner's imposition of a penalty of Rs. 20,000 when the maximum penalty specified was Rs. 5,000. Consequently, the appeal was allowed, and the penalty was set aside.
In conclusion, the judgment revolved around the appellant's failure to make electronic payments as required by the Central Excise Rules and the subsequent imposition of a penalty under Rule 27. The appellate authority found in favor of the appellant, ruling that the circumstances beyond their control justified the failure to comply with the electronic payment requirement, and the penalty imposed was unjustified and not in accordance with the specified maximum penalty.
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