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Case Laws
Showing 161 to 180 of 7228 Records
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2004 (12) TMI 576 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... ies of starches are covered by the tariff heading, and since the material in question is also starch in wet form, the duty demand is justified. 4. emsp Prima facie, the item in question is in-process material. It has not reached final stage. It does rsquo t have the concentration which makes it acceptable as starch under Indian Standards specification. Nor is it in lsquo powder rsquo or lsquo granule rsquo form, the only forms recognized by HSN and ISI. It is well settled that in-process materials which have not reached recognized commercial identity cannot be classified and subjected to Central Excise duty. The present order is contrary to that elementary rule of levy of excise duty. The appellant has a strong prima facie case on merits and pre-deposit of duty would cause undue hardship. Accordingly, the requirement for pre-deposit is waived and stay of recovery as sought during the pendency of appeal is allowed. (Operative part of the order was pronounced in the open Court)
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2004 (12) TMI 575 - CESTAT, KOLKATA
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... ths from the date of such letter. He, therefore, submits that the condition of pre-deposit may kindly be waived. 3.Shri Sanyal vehemently opposes the prayer made by Shri Raman. 4.In the present case, the Modvat credit has been claimed on the basis of Certificates which were in the custody of railway authority and were sent to the appellants on 3rd June, 1997. The appellant has submitted a copy of the letter along with postal cover of the said letter. In view of the above, I dispense with the condition of pre-deposit of duty and penalty. Case to come up for Regular Hearing on 11-2-2005. (Pronounced in the open Court.)
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2004 (12) TMI 574 - CESTAT, BANGALORE
Refund claim - Limitation ... ... ... ... ..... er reprocessing within the stipulated time and account under rule was not rendered to the satisfaction of the Commissioner. Further he said that the refund claim is must as the relevant date in respect of the goods returned to the factory for reprocessing is given in Section 11B. 9.We have considered the rival submissions. We are in agreement with the Revenue rsquo s contention that in order to eligible for refund, all the conditions of Rule 173L period specified in Section 11B. Since the refund claims in this case have been filed much beyond the stipulated time, the same are hit by time limitation. We cannot accept the learned Consultant plea that Rule 173L is self contained rule and hence, no separate refund claim is needed. The Commissioner (Appeal) has erred in allowing the appeals of the Respondents. In view of our above observations, we set aside the Commissioner rsquo s (Appeals) orders and allow the Revenue rsquo s appeals. (Pronounced in the open Court on 17-12-2004)
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2004 (12) TMI 573 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... ldquo supply agreement rdquo were examined by ld. Commissioner (Appeals) and, after considering a catena of decisions, a finding was recorded to the effect that there was no mutuality of interest between the appellants and PAPL. This finding of the Commissioner (Appeals) seems to support the Counsel rsquo s plea of prima facie case although its acceptability remains to be settled in the Revenue rsquo s appeal. The Board rsquo s instructions cited by the Counsel also seem to support his contention that Rule 9 is not applicable to this case in which all ECH sales were not to the so-called related buyer (PAPL). The appellants do have a strong prima facie case. Therefore, we grant waiver of pre-deposit and stay of recovery in respect of the duty and penalty amounts. emsp 4.Having regard to the high stake involved in the appeal, we direct the appeal to be posted for hearing, along with the Revenue rsquo s Appeal (E/897/2004), on 23-2-2005. (Dictated and pronounced in open Court).
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2004 (12) TMI 572 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Production capacity based duty ... ... ... ... ..... stant case there was no surrender of registration certificate. It is implied that there was no surrender of registration certificate, but the entire manufacturing process came to halt for want of power. The appellant is said to have paid the duty for two months in the financial year 1999-2000. However, the liability of duty is there prior to disconnection of power supply, i.e. for the month of June and August, 1999. Since duty is paid for the month of July, 1999 and admittedly there is a duty demand for two months, amounting to Rs. 28,450/-, therefore, it is fair and expedient to direct the appellant to deposit the admitted duty amount of Rs. 28,450/- and a pre-deposit out of the confirmed duty demand. The balance amount is waived from pre-deposit and its recovery is stayed on the pre-deposit of two months duty and the same shall be paid within four weeks. Accordingly, stay application is disposed of. Compliance to be reported by 19-1-2005. (Pronounced in Court on 17-12-2004)
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2004 (12) TMI 571 - CESTAT, NEW DELHI
Appeal - Limitation - Delay - Condonation of ... ... ... ... ..... 30 days. The contention is that the appellant was asking for passing of speaking order to the adjudicating authority, hence, the appeal could not be filed within the period of limitation. In these circumstances, we find that the appellant has sufficient reason for not filing the appeal within the normal period of limitation. As per the provision of Central Excise Act, Commissioner can condone the delay of 30 days on showing the sufficient cause. Therefore, the delay in filing the appeal before the Commissioner (Appeals) is condoned. emsp 3.On merits, we find that neither the adjudicating authority nor the Commissioner (Appeals) had given any finding regarding the basis for enhancement of the value of the goods. In these circumstances, the matter is remanded to the adjudicating authority after setting aside the impugned order for deciding afresh after giving them an opportunity of hearing. The appeal is disposed of by way of remand. Pronounced and dictated in the open Court .
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2004 (12) TMI 570 - CESTAT, NEW DELHI
... ...
... ... ..... of material shows that appellants only supplied the parts of Telephone Exchange. The terms and conditions of the purchase order are that the purchaser hereby places an order on the supplier to supply the equipment as indicated in Annexure-I and the Annexure-I is the different parts of the Telephone Exchange. The payment terms as per the purchase order was that 90 payment is to be made on the proof of despatch of equipment and 5 payment was to be made within six months from the date of supply of equipment in case the consignee have not indicated any shortage or defective supply equipment to the supplier. In these circumstances, we find that there is no evidence produced by the Revenue to show that the appellant rsquo s manufactured/assembled Telephone Exchange as held by the Adjudicating authority. The appellants only supplied the parts, which were claimed on payment of duty. In these circumstances, the present demand is not sustainable, hence set aside. The appeal is allowed.
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2004 (12) TMI 569 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... intended to allow the manufacturers to clear the exempted goods after reversing the Modvat credit, in all other cases also, there was no requirement to classify the goods under two different clauses as (a) and (b). As such, we are of the view that the appellants need to be put to some conditions of pre-deposit. 5.Accordingly, after taking into consideration of the entire facts and circumstances of the case, we direct the appellant to deposit an amount of Rs. 5 lakhs (Rupees five lakhs only). At this stage, ld. Advocate prays that they would deposit the amount within a period of one week and revenue should be directed to lift the detention order and release the detained goods. In view of the above, we direct the appellants to deposit the amount within a period of one week and the Revenue would release the goods immediately thereafter. 6.Matter to come up for ascertaining compliance for final disposal of the appeal on 29-12-2004. 7.Order to be issued dasti. (Dictated in Court)
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2004 (12) TMI 568 - CESTAT, CHENNAI
Appellate Tribunal - Limitation ... ... ... ... ..... s (as principal executive officer) to pursue the appropriate legal remedy after obtaining legal advice in the matter, did not take any steps against the impugned order for ten years from 15-5-1993. The exemption application submitted to the Central Government in the year 1997 (which was rejected in 1998) cannot be considered to be an alternative remedy against the impugned order. In any case it can hardly be an excuse for the Corporation for not having filed appeal (against the impugned order) between 1993 and 1997 or subsequent to 1998. The Commissioner of the Corporation has thoroughly failed to make a case for condonation of the delay often years. emsp 8.Therefore, in a pragmatic and justice-oriented approach, we respectfully follow the Hon rsquo ble Supreme Court rsquo s decision in Tata Yodogawa rsquo s case and dismiss the Corporation rsquo s COD application. Consequently, the appeal gets dismissed along with the stay application. (Dictated and pronounced in open Court)
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2004 (12) TMI 567 - CESTAT, MUMBAI
Refund claim - Limitation - Bank guarantee ... ... ... ... ..... r its guarantee, it would be necessary for the Revenue or, where the bank guarantee is in favour of the principal administrative officer of the Court, the officer to file a suit against the bank for the amount due upon the bank guarantee. The amount of the disputed tax or duty that is secured by a bank guarantee cannot, therefore, be held to be paid to the Revenue. There is no question of its refund, and Section 11B is not attracted rdquo . 4.The Division Bench of this Tribunal has also followed the above ruling in the case of M/s. Saheli Synthetics Pvt. Ltd. v. Commissioner of Customs and Central Excise, Surat-I 2001 (134) E.L.T. 738 (Tribunal) . emsp 5.Having considered the aforesaid rulings, I am of the view that the appellant is entitled to get back the amount in question, which is offered as security through Bank Guarantee as the limitation provided under Section 11B of the Central Excise Act is not attractive, hence appeal is allowed. (Pronounced in Court on 14-12-2004)
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2004 (12) TMI 566 - CESTAT, BANGALORE
... ...
... ... ..... e added to the assessable value. 3.The learned Counsel submitted that Section 4(1)(a) of the Act and the judgments relied by the Commissioner are totally applicable to the facts of the case. 4.On a careful consideration, we notice that the assessments had been done under Section 4(1)(a) of the Act and the profit margin is with regard to the manufacturing cost and the profit margin arrived at that point of time when there is a factory gate sale for the goods manufactured. The supply of the goods in secondary packing outside the factory gate is not includible and so also its marginal profits of 1 - 2 as held in the Baroda Electric Meters Ltd. As held by the Apex Court, the ratio is not distinguishable. We also find that there is no ground to invoke larger period in the matter as all the facts of the case were known to the Department. There is no merit in this appeal and the same is rejected. (Operative portion of this Order was pronounced in open court on conclusion of hearing)
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2004 (12) TMI 565 - CESTAT, NEW DELHI
Not entitled to benefit of exemption under Notification No. 8/96-C.E. ... ... ... ... ..... is imported one. On the other hand, it is the contention of the Appellants that the Notification nowhere provides that waste and scrap should generate within the factory of production. We do not find any force in the contention of the appellants. S. No. 74.2 of Notification No. 8/96 provides nil rate of duty in respect of copper waste and scrap used within the factory of production for the manufacture of unrefined unwrought copper, copper sheets and copper circles and handicrafts. A plain reading of the Notification reveals that nil rate of duty is attracted in respect of copper waste and scrap which is used within the factory of production. The Notification thus clearly provides that copper waste and scrap has to be used within the factory of production, as in the present matter, the scrap has been imported from abroad, the specifications mentioned in the Notification are not satisfied. Accordingly, we find no merit in the Appeal which is rejected. (Pronounced in the Court).
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2004 (12) TMI 564 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... has no jurisdiction and also further observed that the Officer, who has issued the Show Cause Notice, has no jurisdiction and set aside the duty demand and penalty under Section 114A. emsp 5.The Larger Bench has followed the decision in the case of M/s. Alcobex Metals (P) Ltd. reported in 1992 (58) E.L.T. 108 (Tribunal) and held that Show Cause Notice cannot be segregated into demands for the purpose of demand of duty and confiscation proceedings. Once a Show Cause Notice has been held without jurisdiction for the purpose of demand of duty, the same would be invalid in it totality. The Supreme Court also confirmed the decision in the case of Collector of Central Excise, Jaipur v. M/s. Alcobex Metals reported in 2003 (153) E.L.T. 241 (S.C.) 2003 (55) RLT 377 (S.C.) . As the appellant can be said to have shown strong prime facie case, redemption fine and pre-deposit of penalty is waived and their recovery is stayed. Applications are allowed. (Pronounced in Court on 14-12-2004).
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2004 (12) TMI 563 - CESTAT, NEW DELHI
Penalty and interest - Imposition of ... ... ... ... ..... Rashtriya Ispat Nigam Ltd. v. CCE reported in 2003 (161) E.L.T. 285 (T) 2003 (54) RLT 317 against which the appeal filed by the Revenue was dismissed by Hon rsquo ble Supreme Court and the decision of this Tribunal in Karnataka High Court in the case of CCE, Mangalore v. Shree Krishna Pipe Industries reported in 2004 (165) E.L.T. 508 (Kal.) 2004 (61) RLT 17 where the particular matter on this issue is answered in favour of the assessee by the Hon rsquo ble High Court. In view of the above decision of the Hon rsquo ble Supreme Court in the case of Rashtriya Ispat Nigam Ltd., we respectfully followed the ratio of the law laid down in the Larger Bench of the Tribunal in the case of Machino Montell (I) Ltd. (supra). The appellant had deposited whole of the duty prior to issuance of show-cause notice, therefore, the imposition of penalty and interest is not sustainable and is set aside. The appeal is allowed as indicated above. (Dictated and pronounced in open Court on 14-12-2004)
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2004 (12) TMI 562 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... ssion ldquo scientific equipment rdquo used in the above Notification. According to the Revenue, it is only a machinery and not a ldquo scientific equipment rdquo . Ld. Consultant for the appellants relies on Note 5 to the Section XVI of the Central Excise Tariff Schedule and submits that the expression ldquo machine rdquo includes ldquo equipment rdquo also. It is his case that the printing machine is scientific equipment specified in the above Notification for the purpose of duty-free supply to institutions like RECs. Ld. DR opposes this argument and points out that Section Note 5 does not refer to ldquo scientific equipment rdquo . 2.After giving careful consideration to the submissions, we find that the appellants have a prima facie case inasmuch as apparently, they had fulfilled all the essential conditions for exemption under the Notification. Accordingly, waiver of pre-deposit and stay of recovery are allowed as prayed for. (Order dictated and pronounced in open court)
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2004 (12) TMI 561 - CESTAT, BANGALORE
Appeal - Limitation - Condonation of delay ... ... ... ... ..... or condoning the abnormal delay in filing the appeal. There is no explanation for the abnormal delay and hence the same cannot be condoned in the light of the Apex Court judgments rendered in the case of Collector of Central Excise, Madras v. A. Md. Bilal and Co. - 1999 (108) E.L.T. 331 (S.C.) and in the case of Collector of C. Ex., Bangalore v. Bharat Earth Movers Ltd. - 2000 (120) E.L.T. 35 (S.C.). Following the ratio of the Apex Court judgments cited by learned Counsel, we do not find any merit in the COD application. The COD application is rejected and in consequent, the appeal is also dismissed. (Pronounced and dictated in the open Court)
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2004 (12) TMI 560 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... notification. Each entry is an independent one and has to be construed as independent exemption. Note under serial No. 42 specifically excludes the goods in question but the same cannot be pressed into service for examining the appellant rsquo s claim under serial No. 43. The effect of both the entries is that the exemption cannot be claimed against the entry No. 42 but the same cannot be made the basis for denying the exemption under serial No. 43. It has to be construed, as the two entries are independent notification. It is well settled that when there are two diverse notification, the assessee is at liberty to choose the notification which is beneficial to it. As such, we are of the view that the appellants have been able to make out a good prima facie case in their favour so as to allow the stay petition unconditionally. We order accordingly. 4.Inasmuch as a very short point is involved, we fix the appeal also for hearing on 2-2-2005. (Pronounced in Court on 10-12-2004)
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2004 (12) TMI 559 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... ). As the said provision underwent amendment as 57AB (1)(b) and according to him, the amended provision is not seen in verbatim, but there is difference in its material implications. I have gone through both the provisions and I do not see any change as far as inputs are concerned, which can be removed on payment of duty. Prima facie it can be said that the decision given by the Larger Bench still holds good. emsp 6.In the light of the aforesaid discussion, I am of the view that it is not fair on the part of the Commissioner (Appeals) to insist upon the pre-deposit order, since he has decided the earlier appeal in favour of the appellant. Having considered the same, this appeal is allowed in remand with a direction to dispose off the appeal by the Commissioner (Appeals) on merits after giving an opportunity to both sides and without insisting on the pre-deposit order. Accordingly, the appeal is disposed of and stay application is considered. (Pronounced in Court on 9-12-2004)
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2004 (12) TMI 558 - CESTAT, NEW DELHI
Demand - Job worker ... ... ... ... ..... h duty is being paid. The shells so manufactured are fixed on shafts and thereafter the shafts were sent to the principal manufacturer. The Revenue was demanding duty after adding the value of shafts while assessing the duty in respect of job work done by them. The Commissioner in the impugned order held that respondents are only doing job work and after doing the job work, the goods were returned to the principal manufacturer and they were paying duty in respect of shells which were manufactured by them. The Commissioner also noticed the fact that the adjudicating authority in subsequent proceeding dropped such demands. 4.As it is submitted by the Revenue that the respondents are only doing job work and working under Rule 57F (4) of Central Excise Rule, therefore, they are not liable to pay duty after adding the value of the shaft. In these circumstances, we find no infirmity in the impugned order. The appeal is dismissed. (Dictated and pronounced in open Court on 8-12-2004)
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2004 (12) TMI 557 - CESTAT, NEW DELHI
Cenvat/Modvat - Deemed credit - Penalty ... ... ... ... ..... tries v. CCE. Therefore, the impugned order denying the Modvat credit on the inputs received from these suppliers to the appellants cannot be sustained and is set aside. 4. emsp Regarding imposition of penalty, the learned Counsel has, however, contended that it could not be imposed as it was not in the hands of the appellants to get the correct declarations from the suppliers of the inputs. But we are unable to accept this contention of the Counsel. It was for the appellants to see that the declarations given by the suppliers were in accordance with law, if they wanted to avail of the benefit of the Notification in question. Having failed to exercise with due diligence, in our view, penalty is imposable on them. However, the penalty is reduced to Rs. 20,000/-. 5. emsp In the light of the discussion made above, the impugned order is set aside/modified in the above terms. The appeals of the appellants stand disposed off in the above terms. (Dictated in open Court on 8-12-2004)
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