Nov 262014
 

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PROMPT PERSONNEL CONSULTANCY SERVICES PVT LTD Versus COMMISSIONER OF SERVICE TAX-II, MUMBAI – Service Tax – CESTAT MUMBAI – Tri – Waiver of pre-deposit of service tax – Manpower Recruitment or Supply Agency service – Held that:- applicant informed the Revenue vide letter which was received on 19.9.2006 explaining their activity after obtaining legal opinion and this letter was produced during investigation in 2011 by the Director of the applicant. Therefore, prima facie the applicant has made out a strong case for waiver of dues on limitation. The pre-deposit of the dues is waived and recovery therefore stayed for hearing the appeal – Stay granted. – 2014 (11) TMI 830 – CESTAT MUMBAI – TMI – Appeal No.ST/89890/13 – - Dated:- 17-6-2014 – S S Kang and P K Jain, JJ. For the Appellant : Mr Neerav R Mainkar, Adv. For the Respondent : Mr B S Meena, Additional Commissioner (AR) ORDER Per: S S Kang: 1. Heard both sides. 2. Applicant filed the application for waiver of pre-deposit of service tax of ₹ 1,09,54,803/-, interest and penalties. 3. The demand is confirmed on the ground that the applicant had not paid appropriate service tax in respect of the Manpower Recruitment or Supply Agency service. The applicants are providing manpower to M/s Agility Logistics Pvt Ltd. and M/s Asahi glass India Pvt. Ltd. Appellants are registered with revenue authorities and paying service tax. 4. The contention of the applicant is that in respect of the supply of manpower to M/s Agility Logistics Pvt. Ltd., applicants are procuring manpower from the from Grocery markets and Shop Board and whatever wages they are receiving alongwith commission the applicants were paying statutorily to Grocery Markets and Shop Board after deducting statutory levy of 41%. Applicants are not adding 41% which is statutory levy by the Board while arriving at the assessable value of the taxable service for payment of service tax. In respect of M/s Asahi Glass India Pvt Ltd the applicants were paying appropriate tax on the whole amount received from the recipients of service. However, in respect of the amounts which are gratuity and ex-gratia received an………………

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Nov 262014
 

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TRIVENI COAL TRANSPORT PVT LTD. Versus COMMISSIONER OF CENTRAL EXCISE, NAGPUR – Service Tax – CESTAT MUMBAI – Tri – Cargo handling service – Held that:- appellants have undertaken the activity under the work order which is for hiring of tipper for loading of coal from mines to B.G. Siding at Saoner and also hiring of loaders for loading of coal into tippers and thereafter loading of coal to the wagons. The contention of the appellant is that this activity comes under the scope of transportation of goods by road whereas the Revenue held that the activity comes under the scope of cargo handling service. after taking into consideration the activity undertaken in the mines, which is similar to the activity undertaken by the appellant, held that the activity such as hiring of pay loader for mechanical transfer within the mining area comes under the service of taxable service of cargo handling service. Tribunal in the case of Om Shiv Transport (2013 (5) TMI 110 – CESTAT NEW DELHI) after relying upon the decision of the Honble Orissa High Court, held that the activity undertaken similar to the activity undertaken by the appellants comes under the cargo handling service and not under transportation of goods – Decided against assessee. – 2014 (11) TMI 829 – CESTAT MUMBAI – TMI – Appeal No.ST/250/08-Mum – - Dated:- 13-6-2014 – S S Kang and P S Pruthi, JJ. For the Appellant : Shri Sanjay S Agarwal, CA For the Respondent : Shri K S Mishra, Additional Commissioner (AR) JUDGEMENT Per: S S Kang: Heard both sides. 2. The appellant filed this appeal against the impugned order passed by the adjudicating authority whereby a demand of ₹ 69,89,024/- is confirmed with interest and penalties were also imposed on the ground that the appellants provided cargo handling service. 3. The contention of the appellant is that the appellant entered into work order received from M/s. Western Coalfields Ltd. for transportation of coal from Saoner Group of Mines to B.G. Railway Siding and for hiring pay loaders for wagon loading at the Saoner B.G. Siding. The contention is that as the agreement is for transportation of coal from mines to B.G. Siding and loading and unloading is incidental to transportation hence the activity undertaken by the appellant comes under the purview of transport of goods and not cargo handling service. The appellant relied upon the terms and conditions of the work order. 4. The Revenue relied upon the decision of the Hon'ble Orissa High Court in the case of Coal Carriers vs. CCE &ST, Bhubaneswar reported in 2011 (………………

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Nov 262014
 

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Commissioner of Central Excise, Pondicherry Versus Cuddalore Kalamandir Women Workers Multi Purpose Co-op. Cottage Industrial Soc. Ltd. – Central Excise – CESTAT CHENNAI – Tri – Classification of goods – Classification of Herbal Shikakai Powder under the name of Ragaa – Classification under sub-heading 3003.39 as other medicaments or under Chapter Heading 3305.99 as per Note 2 to Chapter 33 read with Chapter Note 1 (d) to Chapter 30 of the Schedule to the Central Excise Tariff Act, 1985 attracting 30% adv – Held that:- issue relates to classification of Herbal Shikakai Powder is no longer res integra in view of the decision of the Tribunal in the case of Commissioner of Central Excise, Trichirapalli Vs Medi Herbs – [2006 (7) TMI 25 - CESTAT, CHENNAI]. It has been held that Herbal Shikakai Powder is classifiable as cosmetic under sub-heading 3305.99 of the CETA85 during the period September 1996 to December 1997 and September 1996 to March 1997. The Honble Karnataka High Court in the case of Shri Ramakrishna Soapnut Works Vs Superintendent – [2001 (7) TMI 153 - HIGH COURT OF KARNATAKA AT BANGALORE] held that Shikakai Powder (used as a shampoo for cleaning hair) would fall under Heading 33.05 of the CETA under the residuary item others. Tribunal in the case of CCE Tiruchirapalli Vs Medi Herbs (2006 (7) TMI 25 – CESTAT, CHENNAI) on the same product in the context of Boards Circular No.333/49/97-CX dt. 10.9.97 held that assessee was bound to pay duty on the goods in question for six months prior to 10.9.1997 by following the judgement of the Honble Supreme Court in the case of ITW Signode India Ltd. Vs Collector – [2003 (11) TMI 114 - SUPREME COURT OF INDIA]. Hence, the demand of duty for the period prior to 10.9.97 is sustainable and the findings of the Commissioner (Appeals) to that extent is liable to be set aside. However, we agree with the finding of the Commissioner (Appeals) that demand increased by way of corrigendum to SCN is hit by limitation – assessee is liable to pay demand of duty for six months prior to 10.9.1997 – Decided partly in favour of Revenue. – 2014 (11) TMI 828 – CESTAT CHENNAI – TMI – Appeal Nos.E/714/2003, E/751/2003 – FINAL ORDER No.40826-40827/2014 – Dated:- 11-11-2014 – Shri P.K. Das and Shri R. Periasami, JJ. For the Respondent : Shri K.P.Muralidharan AC (AR) JUDGEMENT Per P.K. Das; 1. Both the appeals are arising out of a common order and therefore both are taken up together for disposal. 2. The relevant of the case, in brief, are that the assessees are engaged in the manufacture of Herbal Shikakai Powder under the name of "Ragaa" and classified under sub-heading 3003.39 as "other medicaments". According to the Revenue, the product namely Herbal Shikakai Powder is a preparation for use on the hair and would be classifiable under Chapter Heading 3305.99 as per Note 2 to Chapter 33 read with Chapter Note 1 (d) to Chapter 30 of the Schedule to the Central Excise Tariff Act, 1985 attracting 30% adv. The Superintendent of Central Excise issued periodical show cause notices during the year 1997. The adjudicating authority ordered that the product "Shikakai Powder packed in unit containers and sold under brand name is classifiable under chapter sub heading 3305.99 of the Schedule to the CETA'85 and also confirmed the demand of duty of ₹ 23,86,083/- under Rule 9 (2) of the erstwhile Central Excise Rules, 1944 read with Section 11A (1) of the Central Excise Act, 1944. By the impugned order, the Commissioner (Appeals) modified the adjudication order in so far as the classification of the product was upheld but the demand of duty was partly dropped on the ground of limitation. The assessee filed appeal against the classification of the goods and demand of duty. Similarly, Revenue filed appeal against setting aside a portion of the demand on limitation. 3. None appeared on behalf of the assessee. There is no adjournment application in the file. As the appeal is an old one, we take up the appeals for hearing. 4. After hearing the Ld. AR for Revenue and on perusal of records, we find that the issue relates to classification of Herba………………

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Nov 262014
 

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M/s Volvo Tiles, Shri Dhiraj J. Patel Versus CCE Vadodara-I – Central Excise – CESTAT AHMEDABAD – Tri – SSI Exemption – Notification No.8/2003-CE dt.01.03.2003 – Clearance of vitrified tiles – Mis-declaration of goods – Demand of differential duty – Imposition of interest and penalty – whether the confirmation of demand of the duty on the appellant along with interest and penalties imposed by invoking extended period is correct or otherwise – Held that:- show cause notice dt.21.01.2010 is barred by limitation and extended period cannot be invoked as the appellant may be guilty of not informing the Department about the manufacturing activity, but it was definitely not a willful suppression or mis-statement with intention to evade duty. On perusal of the records, we find that it was appellant who had approached the Departmental authorities for granting of Central Excise registration on crossing the threshold limit of ₹ 1.5 crores turnover as is envisaged in Notification No.8/2003-CE. We also find from the records that the main appellant had recorded all the manufacturing activities and all clearances in the books of accounts, which is evident from the fact that show cause notice has been issued based upon such records only. On the background of such factual matrix, we agree that the appellant cannot be charged with willful suppression of the fact with intent to evade payment of duty. This our view is due to the fact that the appellant may have mis-read the notification No.8/2003-CE. In our view, the reading of Notification No.8/2003-CE is itself confusing and may be a situation wherein the appellant, as claimed by the ld. Counsel, are not highly literate. extended period can be invoked only when there is an intention to evade payment of duty and not mere failure to pay duty. Their lordships have also held that there should be something more i.e. the assessee must be aware that duty was leviable and it must be deliberately avoiding paying duty. As the appellants themselves had approached the Departmental authorities for granting of licence after crossing the threshold limit – Appellant has made out a case. The impugned order is unsustainable and liable to be set aside. – Following decision of Tamil Nadu Housing Board [1994 (9) TMI 69 - SUPREME COURT OF INDIA] – Decided in favour of assessee. – 2014 (11) TMI 827 – CESTAT AHMEDABAD – TMI – Appeal No.E/635,636/2012-DB – Order No.A/11998-11999/2014 – Dated:- 20-11-2014 – MR.M.V. RAVINDRAN AND MR. H.K. THAKUR, JJ. For the Appellant : Shri Willingdon Christian, Adv. For the Respondent : Shri Alok Srivastava, Dy.Commissioner (AR) JUDGEMENT Per: M.V. Ravindran 1. These appeals are being disposed of by a common order as they arise out of same OIA No.Comm r(A)/275 & 276/VDR-I/2012, dt.08.05.2012. 2. Briefly, the facts of the case are that the appellant M/s Volvo Tiles had manufactured and cleared vitrified tiles falling under Chapter 69 of Central Excise Tariff Act, 1985 valued at ₹ 2,59,56,392/- under the guise of exempted goods under SSI exemption as envisaged under Notification No.8/2003-CE dt.01.03.2003 as amended without obtaining Central Excise registration and without payment of Central Excise duty during the period from February 2007 to September 2008. The appellants were not entitled to SSI exemption limit of ₹ 1.5 crores as their products were excluded from SSI exemption scheme as per Notification No. 8/2003-CE dt.01.03.2003 as amended and were required to pay Central Excise duty from the very first clearance as per Section 4A of Central Excise Act 1944 i.e. MRP based valuation vide Notification No.14/2008-CE(NT), dt.01.03.2008. However, the appellant failed to pay duty by wrongly availing the exemption under Notification No.8/2003-CE, dt.01.03.2003. 3. A show cause notice dt.21.01.2010 was issued demanding differential duty for the period February 2007 to September 2008 with a proposal for demanding interest as well penalty on the main company and the partner. After following the due process of law, the adjudicating authority confirmed the demand along with interest and imposed penalties on both the appellants. Aggrieved by such an order, appeals were preferred before first appellate authority. The first appellate authority, after granting an opportunity of personal hearing, did not agree with the contentions raised by both the appellants and rejected the said appeals. 4. Ld.Counsel appearing on behalf of the appellant would submit that they are not contesting the issue on merit. It is his submission that the contest is only on the ground of limitation. He would submit that the appellant started manufacturing tiles from February 2007 and was under a bonafide impression that they are not required to discharge the duty being as SSI unit. It is his submission that the appellant had approached the Departmental authorities seeking guidance. He would submit that the departmental officers have not given anything in writing but orally informed the appellant that they are eligible to SSI benefit till ₹ 1.5 crores as per Notification No. 8/2003-CE. He would then submit that when they crossed the limit of ₹ 1.5 crores in September 2008, they approached the department and filed a declaration seeking registration. After receipt of such declaration, the departmental authorities subsequently recorded a statement of the partner and held that such product manufactured by the appellant would not get be covered under Notification No. 8/2003-CE. He would submit that the entire case has been made up by the Department after the appellant approached them for registration, hence there is no suppression of facts and more so willful suppression . It is his submission that the appellant had bonafide belief and had always cleared the goods on invoices and recorded the same in the financial records, which is not disputed and Revenue has not brought forward any contrary evidence. He would rely upon the following decisions:- i) Tamil Nadu Housing Board Vs CCE 1994 (4) RLT 526 (SC) ii) Padmini Products Vs CCE 1989 (25) ECR 289 (SC) iii) Cosmic Dye Chemical Vs CCE 1995 (6) RLT 333 (SC) iv) CCE Vs Anglo French Drugs & Industries 2011 (269) ELT 287 (T) v) Kiran Spinning Mills Vs CCE 1989 (40) ELT 385 (T) vi) Neptune Equipment Pvt.Ltd ………………

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Nov 262014
 

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COMMISSIONER OF CENTRAL EXCISE Versus GOLDEN TABACCO LTD. – Central Excise – BOMBAY HIGH COURT – HC – Cenvat Credit – Input services – Credit of insurance premium amount – Held that:- Tribunal has failed to refer to the background facts. It has also not referred to the fact that whether the services and termed as input services in the case of Idea Cellular (2011 (1) TMI 811 – CESTAT, NEW DELHI) are identical or similar to one involved in the present case. – Having perused the order passed by the Tribunal and being totally dissatisfied with inadequate and crypt reasoning that the present Appeal is allowed. The impugned order of the Tribunal is quashed and set aside. – Matter restored before the tribunal – Decided in favor of revenue. – 2014 (11) TMI 826 – BOMBAY HIGH COURT – 2014 (308) E.L.T. 416 (Bom.) – Central Excise Appeal No. 141 of 2013 – - Dated:- 22-7-2014 – S.C. Dharmadhikari and B.P. Colabawalla, JJ. Shri A.S. Rao with J.B. Mishra, for the Appellant. Shri V.N. Ansurkar i/by Legal Solutions, for the Respondent. ORDER P.C. : This is a Revenue s Appeal challenging the order passed by the Customs, Excise and Service Tax Appellate Tribunal on an application for stay. The application for stay in Appeal No. E/2002/2010/Mum was decided by the impugned order on 5-10-2012. 2. However, instead of dealing with the application for stay/waiver of pre-deposit the Tribunal has disposed of the Appeal itself and by a cryptic, so also, virtually unreasoned order, is the complaint of the Revenue. 3. On the other hand, the learned counsel appearing for the Assessee supports the order of the Tribunal by submitting that the Tribunal has followed the order delivered in the case of Idea Cellular Limited v. The Commissioner of Central Excise reported in 2011 (22) S.T.R. 450 (Tribunal). In that decision, the Tribunal held that insurance of vehicles, laptop and insurance for cash during its transit from the cash collection centre to the bank can be treated as input service and is entitled for input service credit. Therefore, the order passed cannot be termed as perverse or vitiated by any error of law apparent on the face of the record. The Appeal does not raise any substantial question of law and deserves to be dismissed. 4. What we have noted from perusal of two paragraph order and containing the reasoning virtually in one paragraph is that the Tribunal has failed to refer to the background facts. It has also not referred to the fact that whether the services and termed as input services in the case of Idea Cellular (supra) are identical or similar to one involved in the present case. We find some substance in the contentions of Mr. Rao, learned counsel appearing for the Revenue that in this case the factual situation is prima facie not identical. There, the issue was the credit on input services and of laptop, etc. In this case the issue involved was taking of service tax credit of insurance premium amount in res………………

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Nov 262014
 

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Flevel International Versus Commissioner – Central Excise – DELHI HIGH COURT – HC – Confiscation of goods – clandestine removal – goods kept at residential premises of appellants – SSI Exemption – Whether the decision of the Customs, Excise and Service Tax Appellate Tribunal upholding demand of ₹ 58,54,825/- and confiscation of 24 air-conditioners along with duty and penalty demand of ₹ 3,16,800/- is perverse and contrary to the facts on record – Delhi High Court admitted the appeal of the assessee against the decision of CESTAT New Delhi [2014 (2) TMI 1094 - CESTAT NEW DELHI (LB)]. – 2014 (11) ………………

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Nov 262014
 

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INCORPORATED DAUB VERHOEVEN LTD. Versus UNION OF INDIA – Central Excise – CALCUTTA HIGH COURT – HC – Waiver of pre-deposit – Wrongful availment of CENVAT Credit – Held that:- The proceeding was initiated on an allegation that the petitioners have not done any manufacturing activities and there was a wrongful availment of the Cenvat credit. It does not admit any debate that the Cenvat credit is as good as cash provided the same is availed in the manner permissible under the relevant rules and the statute. It is no doubt true that the statement of the persons made before the authority if adversely affect the interest of the assessee, the authority must provide an opportunity to the assessee to cross-examine the same witness. This plea appeared to have been taken by the petitioners before the original authority as well as appellate authority. The said authorities did not find any substance therein. However, the matter is at large before the Tribunal where the Tribunal shall consider all the factual aspects at the time of deciding the appeal finally. The Tribunal found that the petitioners have been able to make out an arguable case and have granted waiver to the extent of 75% so far as it relates to the demand and 90% of the penalty imposed on the director of the company and a total waiver of the statutory penalty. Such discretion cannot be said to be perverse and so unreasonable that it cannot be allowed to stand for a moment – Decide against assessee. – 2014 (11) TMI 824 – CALCUTTA HIGH COURT – 2014 (308) E.L.T. 457 (Cal.) – W.P. No. 315 of 2014 – - Dated:- 8-7-2014 – Harish Tandon, J. Shri N.K. Chowdhury and Arijit Chakraborty, Advocates, for the Petitioners. Shri S.B. Saraf and K.K. Maiti, Advocates, for the Respondent. ORDER The Court : By challenging the order dated 28th January, 2014 passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) disposing of an application seeking waiver of pre-deposit condition, the present writ petition is filed before this Court. 2. The learned Advocate for the writ petitioners is very much vocal in contending that his clients have paid the excess amount than the demand made in the show cause notice and, therefore, there is no justification on the part of the Tribunal to direct the petitioners to deposit 25% of the demand and 10% of the personal penalty. The attention of the Court is drawn to the show cause notice, dated 26th November, 2009 wherein the authority recorded the payment of an amount for a period which is covered under the proceeding initiated against the petitioners. The Department says that there was an illegal and wrongful availment of the Cenvat credit as the petitioners could not undertake any manufacturing process and, therefore, exposed himself liable to be punished under the Central Excise Act and the Rules framed thereunder. 3. In a preliminary inquiry, the persons disclosed by the petitioners to have done the job work as well as transported the finished goods, were examined and their statements were corrected. According to the petitioners the majority of those persons have corroborated the statement made by the petitioners except one or two who denied to have u………………

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Nov 262014
 

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HARSHVADAN RAJNIKANT TRIVEDI Versus UNION OF INDIA – Central Excise – GUJARAT HIGH COURT – HC – Application for supply of documents – petitioners require the photocopies of the documents/files seized under the panchnama, dated 7-12-2013, which have been seized from the possession of the petitioners, in his day-to-day business and while having correspondence with different authorities – Held that:- Petitioners have demanded the photocopies of the record and documents seized from them under the cover of the panchnama, dated 7-12-2013, which came to be seized from the possession of the petitioners. It is required to be noted that as such the petitioners are not demanding the original of the record and documents seized under the cover of the panchnama, dated 7-12-2013. The petitioners are ready and willing to bear the expenditure towards the photocopies of the record and documents seized and are ready and willing to deposit ₹ 10,000/- more towards the manpower, etc. The aforesaid request has been denied mainly relying upon Clause 55(m) of the Central Excise Intelligence and Investigation Manual as well as on the ground that the petitioners are not cooperating in the inquiry/investigation. An affidavit-in-rejoinder is filed on behalf of the petitioners disputing that the petitioners are not cooperating. On the ground that the petitioners are not cooperating in the inquiry/investigation, the prayer of the petitioners to supply the photocopies of the documents seized cannot be denied. If, it is found that, the petitioners are not cooperating in the inquiry/investigation, it will always be open for the Department to proceed further with the inquiry/investigation ex parte on the basis of the material on record and proceed further with the same. On considering Clause 55 of the Central Excise Intelligence and Investigation Manual as a whole it confers certain right upon the assessee/occupant of the premises at the time of search and seizure. One of the right conferred is Clause 55(m). However, there is no specific bar and/or provisions under which the petitioners can be denied the photocopies of the documents seized that too when it is asked at the cost of the petitioners. – As such there is no justification on the part of the concerned respondents in not providing photocopies of the documents seized under the panchnama, dated 7-12-2013 – Decided in favour of assessee. – 2014 (11) TMI 823 – GUJARAT HIGH COURT – 2014 (308) E.L.T. 464 (Guj.) – Special Civil Application No. 6723 of 2014 – - Dated:- 18-6-2014 – M.R. Shah and K.J. Thaker, JJ. Shri D.K. Trivedi, Advocate, for the Petitioner. Shri Y.N. Ravani, Advocate, for the Respondent. JUDGMENT Rule : Shri Y.N. Ravani, learned Counsel waives service of notice of rule on behalf of the respondents. 2. In the facts and circumstances of the case, the present petition is taken up for final hearing today. 3. By way of this petition under Article 226 of the Constitution of India the petitioners have prayed for the following relief; That the Hon ble Court may be pleased to issue writ of mandamus, certiorari and/or any other appropriate writ, order or direction in the nature of writ and thereby may order suitably so that the respondents herein may provide photocopies of the records and documents seized by them under cover of the panchnama dated 7-12-2013 from the possession of the petitioners herein. 4. It is the case on behalf of the petitioners that the petitioners require the photocopies of the documents/files seized under the panchnama, dated 7-12-2013, which have been seized from the possession of the petitioners, in his day-to-day business and while having correspondence with different authorities. It is submitted that when the petitioners approached the authority and requested for photocopies of the documents seized by them under cover of the panchnama, dated 7-12-2013, the same has been denied. It is submitted that the petitioners are as such not asking for the original record and documents seized, however, is asking for the photocopies of the same, which may be at the cost of the petitioners. 5. Shri Trivedi, learned advocate appearing on behalf of the petitioners has stated at the bar that the petitioners are ready and willing to deposit ₹ 10,000/- more, than the actual cost of the photocopies of the record and documents seized, towards manpower, etc. 6. In response to the notice issued by this Court, Shri Yogesh Ravani, learned Counsel has appeared on behalf of the respondents. An affidavit-in-reply is filed on behalf of the respondents objecting the prayer and the request of the petitioners to provide the photocopies of the record and documents seized by them under the cover of the panchnama, dated 7-12-2013. It is submitted that as such the inquiry and the investigation is pending against the petitioners and the same could not be completed as the petitioners are not cooperating. It is submitted that number of notices have been issued to the petitioners to cooperate in the inquiry/investigation, however, the petitioners are not cooperating. Relying upon Clause 55(m) of the Central Excise Intelligence and Investigation Manual it is submitted that till the inquiry and/or investigation is concluded the petitioners are not entitled to the record seized. It is submitted that as such the petitioners would have a right of inspection of the seized documents only. It is submitted that considering Clause 55(m) of the Central Excise Intelligence and Investigation Manual the petitioners shall not be entitled to get back the documents seized till the investigation/inquiry is concluded and the show cause notice on the same has been issued. It is submitted that as such whatever shall be relied upon by the Department the sam………………

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Nov 262014
 

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Golden Tobacco Ltd. Versus Commissioner – Central Excise – BOMBAY HIGH COURT – HC – Recovery of CENVAT Credit – removal as such – rollers/cylinders were used for printing and when they became worn out, the same were again cleared to their vendors for new engraving/dechroming – Bombay High Court admitted the appeal of the assessee against the order of Tribunal [2013 (9) TMI 167 - CESTAT MUMBAI] on the following substantial questions of law : Whether, the CESTAT was correct in confirming the duty demand when the law is settled by the decisions of the two High Courts? Whether, the CESTAT was right in relying upon the decision of the Larger Bench of the Tribunal which was not passed in terms of Rule 3(5) of Cenvat Credit Rules 2004? – 2014 (11) TMI 822 – BOMBAY HIGH COURT – 2014 (308) E.L.T. A119 (Bom.) – Central Excise………………

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Nov 262014
 

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COMMISSIONER OF CENTRAL EXCISE, MADURAI Versus VIDYASAGAR TEXTILES LTD. – Central Excise – MADRAS HIGH COURT – HC – SSI benefit under notification No. 8/2000 C.E., dated 1-3-2000 – whether the Small Scale Industry exemption granted to the respondent can be extended till 23-9-2000, since the respondent has been amalgamated with other Textile Company, by name, Palani Andavar Cotton and Synthetic Spinners Limited on 1-4-2000 – Held that:- High Court has not given specific date with regard to effect of date of amalgamation. But, admittedly the respondent has been amalgamated with Palani Andavar Cotton and Synthetic Spinners Limited on 1-4-2000. Since in the order passed by the High Court no specific date has been given apart from the date of amalgamation i.e., on 1-4-2000 and also on the basis of the decision referred to supra, it is made clear that in the instant case the Court can very well come to a conclusion that the so called amalgamation has been given effect to from 1-4-2000. Since amalgamation is having its effect from 1-4-2000, the Small Scale Industry exemption granted till 23-9-2000 to the respondent cannot be accepted. To put it in short, after 1-4-2000 i.e., from the date of amalgamation the respondent has been clothed a new company. Under the said circumstances, the respondent is not entitled to avail Small Scale Industry exemption which has been granted earlier till 23-9-2000. CESTAT, without considering the fact that no specific date is available in the order passed by the High Court with regard to effect of amalgamation and also without considering the resolution passed by the Board of Directors of the respondent to the effect that amalgamation has come into effect from 1-4-2000, has erroneously allowed the appeal and thereby set aside the order passed by the Commissioner of Central Excise (Appeals) and in view of the discussions made earlier, the argument advanced by the learned counsel appearing for the appellant is really having merit, whereas the argument putforth on the side of the learned counsel appearing for the respondent does not hold good and further the substantial questions of law raised on the side of the appellant are having substance and altogether the present Civil Miscellaneous Appeal is liable to be allowed – Decided in favour of revenue. – 2014 (11) TMI 821 – MADRAS HIGH COURT – 2014 (308) E.L.T. 453 (Mad.) – Civil Miscellaneous Appeal (MD) No. 842 of 2010 – - Dated:- 2-1-2014 – A. Selvam and G. Chockalingam, JJ. Shri B. Vijay Karthikeyan, for the Appellant. Shri N. Inbarajan, for the Respondent. JUDGMENT This Civil Miscellaneous Appeal has been directed against the Final Order No. 1291 of 2009, dated 15-9-2009 passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai [2010 (252) E.L.T. 127 (Tri.-Chennai)]. 2. The appellant herein has issued a show cause notice, dated 13-3-2001 to the respondent wherein claim of Central Excise Duty has been demanded. On the basis of show cause notice, Additional Commissioner of Central Excise, Madurai has passed the Order-in-Original and the same has been challenged before the Commissioner of Central Excise (Appeals) by the respondent herein and subsequently dismissed. Against the order passed by the Commissioner of Central Excise (Appeals), A. No. E/524/2002 has been preferred before the CESTAT by the respondent herein. 3. The CESTAT, after hearing both sides and upon relying upon the relevant records, has allowed the appeal by way passing Final Order No. 1291 of 2009, dated 15-9-2009 and against which the present Civil Miscellaneous Appeal has been preferred by the Department as appellant. 4. On the side of the appellant, the following substantial questions of law have been raised for consideration :- (i) Whether the Honourable Tribunal is correct in holding that M/s. VTL, is having separate entity during the period from 1-4-2000 to 23-9-2000 and is entitled to SSI benefit under notification No. 8/2000 C.E., dated 1-3-2000, in the context of transfer date being 1-4-2000 (1-4-200 is also called as effective date vide para 3 of the Honourable CESTAT Final Order No. 1291/09) as held by the Court order dated 28-7-2000 and also in the context of the board resolution dated 13-9-2000 of M/s. VTL, and that of M/s. PCSSL, which reads as follows : Resolved that the order dated 28-7-2000 from the Honourable HC of Chennai sanctioning the scheme of amalgamation between Vidyasagar Textiles Limited with Palaniandavar Cotton and Synthetic Spinners Limited with effect from 1-4-2000 was received and recorded for the purpose of implementing this scheme . (ii) Whether M/s. VTL can claim separate entity for the period from 1-4-2000 to 23-9-2000 for the purpose of availing the benefit of notification No. 8/2000 C.E., dated 1-3-2000 in the context of clause B(5) & B(9)(b) of amalgamation scheme of which contents are as follows : Scheme B(5) says that with effect from 1-4-2000, the entire business and undertaking including all the property movable and immovable of M/s. Vidyasagar Textiles Limited be vested in M/s. Palaniandavar Cotton and Synthetic Spinners Limited as a going concern so as to become the property of the latter from the date. Further Clause B(9)(b) of the scheme says that from the transfer date viz., M/s. Vidyasagar Textiles Limited shall be deemed to have carried on and to be carrying on their business for and on behalf of an………………

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Nov 262014
 

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COMMISSIONER OF CENTRAL EXCISE, BHAVNAGAR Versus FACT PAPER MILLS PVT. LTD. – Central Excise – Supreme Court of India – SC – Maintainability of appeal – Clandestine removal and manufacture of goods – Held that:- appeals are not maintainable under Section 35L of the Central Excise Act, 1944 since the issues raised are of clandestine removal of manufactured goods and clandestine manufacture of goods. Solicitor General seeks leave to withdraw these appeals with liberty to file an appropriate appeal in the High Court under Section 35G of the Act. In the event of an appeal being filed under Section 35G of the Act within three months from today, the High Court shall consider the appeal without raising any question regarding limitation – Decided against Revenue. – 2014 (11) TMI 820 – Supreme Court of India – 2014 (308) E.L.T. 442 (SC) – Civil Appeal Nos. 6569-6574 of 2012 – - Dated:- 25-7-2014 – Madan B. Lokur and C. Nagappan, JJ. Shri Ranjit Kumar, SG, H. Raghvendra Rao, Farrukh Rasheed & B………………

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Nov 262014
 

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COMMR. OF CUSTOMS (IMPORT), MUMBAI Versus MAHINDRA & MAHINDRA LTD. – Central Excise – Supreme Court of India – SC – Valuation of goods – Inclusion of royalty in assessable value of goods – Held that:- Tribunal [2014 (5) TMI 944 - CESTAT MUMBAI] has not assigned any reason while upsetting the order of the Commissioner (Appeals), we are of the view, without going into the merits/demerits of the case, that the matter should be reconsidered by the Tribunal – Decided in favour of Revenue. – 2014 (11) TMI 819 – Supreme Court of India – 2014 (308) E.L.T. 441 (SC) – Civil Appeal No. 707 of 2014 – - Dated:- 14-2-2014 – R.M. Lodha and Shiva Kirti Singh, JJ. Shri S.K. Bagaria, ASG, for the Appellant. Shri Kavin Gulati, Sr. Advocate, for the Respondent. ORDER Vide order dated 17-1-2014, notice was issued to the respondent to show cause as to why the matter should not be remanded back to the Customs, Excise and Service Tax Appellate Tribunal (for short the Tribunal ) for fresh consid………………

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Nov 262014
 

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COMMISSIONER OF CUSTOMS, KANDLA Versus PSL LTD – Customs – CESTAT MUMBAI – Tri – Exemption under Notification No.21/2002-CUs dated 01/03/2002 – Non submission of certificates for finished goods – Revenue contends that in the absence of such a certificate from DGHC, the coated pipes, which are manufactured under bond is liable to import duty at the time of clearance from bond and accordingly issued show-cause notices proposing to demand Customs duty on the entire value of the coated pipes – Held that:- Both the bare pipes as well as the coated pipes were for use for oil exploration/exploitation and the essentiality certificate issued by the DGHC clearly evidence this fact. Though, the certificate specifically mentions serial No.215 of the Notification NO.21/2002, the finished products are also specified therein and the said finished products figure in List 12 to Notification No.21/2002, which also exempts the said goods from import duty vide Serial No. 216 subject to production of essentiality certificate from DGHC. Since the end use not in dispute, the appellant would be entitled the benefit of Serial No. 216 even though they have not specifically claimed the exemption. Since the assessment of duty liability has to be done by the Customs, notwithstanding the fact that the appellant did not claim the benefit of exemption, the same should have been extended to the respondent importer. Further, we observe that the demands covered under show-cause notice dated 07/04/2010 and 17/07/2009 are clearly time barred, inasmuch as the entire transactions were fully known to the department and the respondents clearance of coated pipes to Bombay High under shipping bills were also approved by the Customs authorities concerned – Decided against Revenue. – 2014 (11) TMI 818 – CESTAT MUMBAI – TMI – Appeal No.C/105 & 129/11 – - Dated:- 11-9-2014 – P R Chandrasekharan and Ramesh Nair, JJ. For the Appellant : Shri K M Mondal, Spl. Consultant For the Respondent : Shri T V Vishwanathan, Adv. JUDGEMENT Per: P R Chandrasekharan: 1. Revenue is in appeal against Order-in-Original No. KDL/COMMR/13/10-11 & KDL/COMMR/14/10-11 both dated 30/11/2010 passed by Commissioner of Customs, Kandla. Vide the first order, a Customs duty demand of ₹ 309.45 crore has been dropped by the adjudicating authority and vide the second order mentioned, a duty demand of about ₹ 3.07 crores has been dropped by the adjudicating authority. Aggrieved of the same, the Revenue is before us. 2. The facts relevant to the case are as follows: 2.1 The respondent, M/s. PSL Ltd., is a manufacturing of coated pipes and the manufacturing is undertaken under Customs bonded/warehouse in terms of provisions of Sections 58 & 65 of the Customs Act, 1962. The respondent acted as a sub-contractor to contractors, such as, L&T, Punj Lloyd Ltd. and National Petroleum Construction Co. Ltd., who were awarded contracts by ONGC for lying of pipelines, etc. in connection with the oil exploration /exploitation activities undertaken in the Bombay High. The bare pipes imported by the ONGC were supplied to the respondent for coating and the coated pipes were supplied back to ONGC through the contractor and essentiality certificate for use of these pipes was also furnished and the respondent claimed the benefit of Serial No. 215 of the table annexed to the Notification No.21/2002-CUs dated 01/03/2002 which provides exemption on raw-materials and computer parts which provides exemption on raw-materials and computer parts used in the manufacture of goods supplied for oil exploration/exploitation subject to production of an essentiality certificate from Directorate General of Hydrocarbon. The department was of the view that the appellant did not submit any certificate with respect to the finished products, namely, coated pipes and in the absence of such a certificate from DGHC, the coated pipes, which are manufactured under bond is liable to import duty at the time of clearance from bond and accordingly issued show-cause notices proposing to demand Customs duty on the entire value of the coated pipes. The learned adjudicating authority observed the coated pipes themselves are eligible for exemption; so also the raw materials used in the manufacture of coated pipes are eligible to exemption. Therefore, the question of any duty demand would not arise, since in both th………………

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Nov 262014
 

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M/s. Suguna Foods Ltd. Versus Commissioner of Customs (Import), Chennai – Customs – CESTAT CHENNAI – Tri – Waiver of pre deposit – Benefit of exemption Notification No. 26/2000-Cus. dated 1.3.2000 – origin of goods – Free Trade Agreement between the Democratic Socialistic Republic of Sri Lanka and Republic of India – contravention of the conditions of the Rules, 2000 – Confiscation of goods – Imposition of interest and penalty – Held that:- the importer shall prove to the satisfaction of the Deputy Commissioner of Customs or the Assistant Commissioner of Customs, as the case may be, in accordance with the Customs Tariff (Determination of Origin of Goods under the Free Trade Agreement (ISFTA) between the Democratic Socialistic Republic of Sri Lanka and Republic of India), Rules, 2000 published with the Notification of the Govt. of India in the Ministry of Finance, Department of Revenue, Notification No.19/2000-Cus. dated 6.3.2000 that the goods in respect of which the benefit of this exemption is claimed are the origin of Sri Lanka. letter of the Department of Commerce, Sri Lanka that the cost statement were not declared in respect of import from France and South Korea. It is also seen that the DRI officers had also found several materials which would reveal the doubt in respect of the authenticity of the certificate of country of origin. Thus, there is a factual dispute, which would be examined at the time of hearing the appeal at length. applicant has not made out a strong prima facie case for waiver of entire amount of dues – Partial stay granted. – 2014 (11) TMI 817 – CESTAT CHENNAI – TMI – C/41075/2013 – Misc. Order No.41282/2014 – Dated:- 5-8-2014 – Shri P.K. Das and Shri R. Periasami, JJ. For the Appellant : Shri S. Krishnanandh, Advocate For the Respondent : Shri M. Rammohan Rao, DC (AR) ORDER Per P.K. Das; The applicant imported Poultry Feed Premix for Broiler Finisher and cleared under 25 Bills of Entry by availing the benefit of exemption Notification No. 26/2000-Cus. dated 1.3.2000 subject to fulfillment of the conditions specified in the Customs Tariff (Determination of Origin of Goods under the Free Trade Agreement between the Democratic Socialistic Republic of Sri Lanka and Republic of India), Rules, 2000 under Notification No. 19/2000-Cus. (NT) dated 6.3.2000 (in short, Rules, 2000). The officers of Directorate of Revenue Intelligence (DRI) during investigation found that the certificate of origin as produced by the applicant is in contravention of the conditions of the said Rules, 2000. A show-cause notice dated 8.6.2011 was issued proposing to deny the benefit of exemption Notification 26/2000-Cus. (sura) and to demand duty of ₹ 2,26,50,335/- along with interest and to impose penalty against 25 Bills of Entry. It was also proposed to confiscate the goods under Section 111(m) and 111(o) of the Customs Act, 1962. By the impugned order, the Commissioner of Customs (Seaport – Import) denied the benefit of exemption under Notification No. 26/2000-Cus. dated 1.3.2000 and confirmed the demand of duty of ₹ 2,26,50,335/- along with interest and also imposed penalty of Rs. One crore on the applicant under Section 112(a) of the Customs Act, 1962. 2. The learned counsel appearing on behalf of the applicant drew the attention of the Bench the relevant portion of the Rule 2000. He particularly drew the attention of the Bench Rules 6, 7, 8, 11 and 13 of the said Rules, 2000. It is contended that Rule 11 of the said Rules, 2000 provides that the products are eligible for import, if the certificate of origin is issued by an authority designated by the Govt. of the exporting country. In the present case, the exporting country has given the certificate and has also confirmed by their letter dated 28.3.2000. So, Revenue has no authority to deny the exemption benefit. It is contended that the exporting country by the said letter had clarified that the verification was carried out by them except two certificates which were cancelled by them, all others are proper and legal. It is contended that those two certificates which were canceled are not part of the proceedings. He submits that the certificates are genuine and the proper officer permitted clearance of the goods, after due verification, therefore the demand of duty is not sustainable. 3. On the other hand, the learned AR for Revenue drew the attention of the Bench particularly Rule 7 of the said Rules. He submits that clause (a)(i) of Rule 7 provides that in the case of import not wholly produced or obtained from the exporting country that will be determined on the basis of value does not exceed 65% of the FOB value of the products produced or obtained and the final process of manufacture is performed within the territory of the exporting country. He submits that it is clearly evident from the letter dated 28.3.2008 that they have not declared the cost statement in the case of import from France and South Korea. He also submits that Notification No. 26/2000-Cus. provides that the goods will be released upon the satisfaction of the proper officer in respect of the fulfillment of the conditions of………………

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Nov 262014
 

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M/s BHILWARA SPINNERS LTD. Versus COMMISSIONER OF CUSTOMS (EXPORT), NHAVA SHEVA – Customs – CESTAT MUMBAI – Tri – Confiscation of goods – Redemption fine and penalty – Violation of condition 5 of the Notification 29/97 – Held that:- As in this case the appellant has opted to shift from zero duty EPCG licence to 10% duty EPCG licence, the same has been accepted by the DGFT and the amendment of the licence has been made retrospective. Therefore, the customs authorities have no authority to demand duty in violation of the condition 5 of the Notification 29/97 from the appellant – Decided in favour of assessee. – 2014 (11) TMI 816 – CESTAT MUMBAI – TMI – Appeal No.C/331/10-Mum – - Dated:- 13-6-2014 – Ashok Jindal and P K Jain, JJ. For the Appellant : Shri T Viswanathan, Adv. For the Respondent : Shri K S Mishra, Addl. Comm. (AR) JUDGEMENT Per: Ashok Jindal: The appellant is in appeal against the impugned order wherein the customs duty of ₹ 1,30,10,568/- have been demanded along with interest and the goods were held liable for confiscation which were allowed to be redeemed on payment of Redemption Fine and the penalty under Section 112A of the Customs Act, 1962 was also imposed. 2. The brief facts of the case are as under:- 3. The appellant is engaged in the business of manufacture and sale of yarn. The appellant had applied for and obtained Export Promotion Capital Goods licence ('EPCG licence' for short) dated 14-1-1998, with obligation to export goods 6 times the CIF value of the capital goods imported. At the relevant time, there were two types of EPCG licences namely 10% basic duty EPCG licence (10% Basic duty + Nil CVD) and zero duty EPCG licence ('Nil' Basic duty + 10% CVD). The appellant opted for zero duty EPCG licence. Para 6.3 of the Foreign Trade Policy as well as condition NO.5 of Notification NO. 29/97 governing zero duty EPCG licence provided that the minimum CIF value of capital goods to be imported under zero duty EPCG licence should be ₹ 20 crores and if the same is not complied, the importer shall be liable to pay full duty with interest. 4. The appellant who had obtained zero duty EPCG licence could not import the capital goods of the value of ₹ 20 crores and therefore applied for revalidation of the licence. Accordingly, the licence was revalidated upto 31-7-2001. However, even within the extended period, capital goods worth ₹ 20 crores could not be imported. 5. In these circumstances, the customs authorities issued various show cause notices calling upon the appellant to show cause as to why the capital gods imported by the appellant should not be confiscated for violating condition No. 5 of Notification No. 29/97 and why duty with interest and penalty should not be recovered from the appellant. 6. The appellant thereupon applied for conversion of licence from 'zero duty EPCG licence' into '10% duty EPCG licence' so that there is no requirement of importing capital goods worth ₹ 20 crores and consequently there is no violation of the condition NO. 5 in Notification NO.29/97. The application was considered by EPCG Committee consisting of both the licensing authorities and the customs authorities and approval for conversion of licence was granted. Accordingly, the licensing authority by its letter dated 8-9-2003 informed the appellant that the licence has been allowed to be converted into 10% duty EPCG licence. Thereupon, the Assistant Commissioner of C………………

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Nov 262014
 

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Steel Profile India Ltd. Versus Commissioner of Customs, (Port-Import) Chennai – Customs – CESTAT CHENNAI – Tri – Confiscation of goods – Redemption fine and penalty – performing office M/s.Bureau Veritas, Madagascar does not figure in Appendix 28 of Hand Book of Procedures (Vol.I) – Held that:- The goods were examined and found to be as declared. Further, the goods were accompanied with pre-shipment certificate of M/s.Bureau Veritas, Mumbai along with certificate of M/s.Bureau Veritas, Madagascar. following the decision of Senor Metals Pvt. Ltd. (2008 (8) TMI 238 – GUJARAT HIGH COURT), the impugned order is set aside – 2014 (11) TMI 815 – CESTAT CHENNAI – TMI – Appeal No.C/426/2005 – FINAL ORDER No. 40410/2014 – Dated:- 30-5-2014 – Shri P.K. Das and Shri R. Periasami, JJ. For the Appellant : Shri B. Satish Sundar, Advocate For the Respondent : Ms. Indira Sisupal, AC (AR) JUDGEMENT Per P.K. Das 1. The relevant facts of the case, in brief, are that the appellant filed Bill of Entry No.790710 dt. 19.4.2005 for clearance of goods declared as re-rollable scrap for a quantity of 249.825 MTs. They produced a Pre Shipment Inspection Certificate bearing No.IND.ITD 09.04.0123-347 dt. 16.3.2005 issued by M/s.Bureau Veritas, Mumbai, wherein the performing office was shown as Bureau Veritas, Madagascar. The adjudicating authority confiscated the goods and imposed redemption fine of ₹ 5,20,000/- and penalty of ₹ 1,25,000/- under Section 112(a) of the Customs Act, 1962 on the ground that performing office M/s.Bureau Veritas, Madagascar does not figure in Appendix 28 of Hand Book of Procedures (Vol.I). As per para 2.32 of EXIM Policy, all imports of metal scrap should invariably be accompanied by a Pre-shipment Inspection Certificate. 2. After hearing both sides and on perusal of records, we find that the appellant produced the Pre-shipment Inspection Certificate issued by M/s. Bureau Veritas, Mumbai wherein the performing office was shown as "M/s.Bureau Veritas, Madagascar" which was not listed in Appendix 28 of the Handbook of Procedures (Vol.I). The Learned Advocate on behalf of appellant submits that on similar situations, the Hon'ble High Court and the Tribunal in various decisions set aside the redemption fine and penalty as under :- (i) Mool Chand Steels Pvt .Ltd. Vs CC Kandla 2006 (206) ELT 793 (Tri.-Del.) upheld by Hon'ble Gujarat High Court in 2008 (221) ELT A118 (ii) CC Vs Senor Metals Pvt. Ltd. – 2009 (236) ELT 445 (Guj.) (iii) CC Kandla Vs M.K. Steel – 2008 (229) ELT 707 (Tri.-Ahmd.) 3. On the other hand, Ld. A.R on behalf of Revenue submits that there is no dispute that appellant had breached the conditions of EXIM Policy as they have failed to produce the specified certificate as required under Appendix 28. Therefore, confiscation of goods and imposition of redemption fine and penalty is justified. He further submits that in the case of Anugraha Valva Castings Ltd. Vs CC (Seaport) Chennai – 2013 (292) ELT 86 (Tri.-Chennai) on the similar situation the Tribunal held that as there is breach of Foreign Trade regulations, they have to obtain Pre-shipment Inspection Certificate, before import of scrap and the assessee would be liable to pay penalty. He further submits that decision of Hon'ble Gujarat High Court in the case of Senor Metals (supra) is in a different context in so far as in that case, Pre Shipment Agency number was mentioned in the list at the time of import of the consignment. 4. It is contended by the Revenue that M/s.Bureau Veritas, Mumbai themselves had not carried inspection. It is noted that M/s.Bureau Veritas, Mumbai issued certificate confirming pre-shipment certificate of M/s.Bureau Veritas, Madagascar. It is seen from the impugned order that on examination of the goods, it was found to be as declared in the Bill of Entry. There is no material available that the impugned consignment contained any objectionable material. In the instant case, pre-shipment certificate was issued by M/s. Bureau Veritas, Mumbai and pre-shipment inspection was conducted by M/s/Bureau Veritas, Madagascar, which is not listed in Appendix 28 of the Hand Book of Procedure. We find that Hon'ble Gujarat High Court in the case of Senor Metals (supra) had dismissed the Revenue's appeal on identical situation. The relevant portion is reproduced herein below:- 7.?Thus, on a plain reading of the aforesaid requirement, the legal obligation has………………

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Nov 262014
 

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Income Tax – Dated:- 26-11-2014 – Once proceedings of penalty us 273(2)(a) or sec.273(2)(aa) have not been initiated in the regular assessment by AO, t………………

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Nov 262014
 

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Income Tax – Dated:- 26-11-2014 – It would be just and proper, if, the income from the transactions recorded in the seized diary are determined on………………

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