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Case Laws
Showing 141 to 160 of 7262 Records
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2006 (12) TMI 440 - CESTAT, AHMEDABAD
Cenvat/Modvat - Proforma credit ... ... ... ... ..... tion No. 24/94 dated 20-5-94 and from that date the respondent is not eligible for proforma credit. It is seen from the record that the respondent has availed proforma credit but requested the adjudicating authority to permit them for transfer this credit into modvat account. It is undisputed that the respondents are eligible for modvat credit on such proforma credit availed by them during the period 20th May to 6th May 1994. It is well settled that proforma credit and modvat credit are beneficial pieces of legislation and should not be denied only on the ground of technical infraction. Since there is no contrary findings that the respondents have availed proforma credit as well as modvat credit, I do not find any reason to deny credit on such amount. Hence the orders passed by lower authorities is not contrary to the settled law. 4. emsp Accordingly, I do not find any merit in the appeal filed by the revenue. The same is dismissed. (Dictated and pronounced in the Open Court)
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2006 (12) TMI 439 - CESTAT, AHMEDABAD
Confiscation - Show cause notice - Jurisdiction ... ... ... ... ..... case of Alcobex was not rendered by the designated Larger Bench but the same has the effect of having been delivered by a Bench of five members who have discussed the point at length. As such we are not inclined to deviate from the ratio of Alcobex and take a view different than the one taken in Alcobex Metals Pvt. Ltd. 7. emsp It can be noticed that the Larger Bench upheld the order of the Alcobex Metals Pvt. Ltd. 1992 (58) E.L.T. 108 and clearly held that once the show cause notice which is issued for confiscation of the seized goods, demand of duty, and for imposition of penalty is being set aside partly on the ground of jurisdiction, confiscation arising out of the same show cause notice cannot stand. 8. emsp Accordingly, respectfully following the Larger Bench decision the impugned order as regards the upholding of the confiscation of the goods is liable to be set aside. The appeal is allowed with consequential relief, if any. (Dictated and pronounced in the Open Court)
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2006 (12) TMI 438 - CESTAT, AHMEDABAD
Vacuum circuit breaker - Classification of ... ... ... ... ..... majority decision in the case of S and S Power Switchgear (supra) has held that Board rsquo s order under Section 37B would be applicable only prospectively. It is also seen from records that the products of the appellant would get covered under Chapter Sub-heading No. 8535, if read with the HOS Explanatory Notes to Chapter Headings 85.35 and 85.37, as appellants clear their product ldquo Vacuum Circuit Breakers rdquo independently to their purchasers. 8. emsp Reliance placed by the learned DR in the case of Crompton Greaves (supra) is not correct inasmuch as the said order of the Tribunal was in respect of classification of the panels and not of ldquo vacuum circuit breakers rdquo . 9. emsp Accordingly, we find that impugned order is liable to be set aside and respectfully following the majority order in the case of S and S Power Switchgear (supra), we set aside the impugned order and allow the appeal with consequential relief, if any. (Dictated and pronounced in the Court)
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2006 (12) TMI 437 - CESTAT, AHMEDABAD
Appeal to Appellate Tribunal - Maintainability of - Doctrine of merger ... ... ... ... ..... fraudulent acts leading to evasion of duty. They had played major roles in the whole game of fraud and deception. There was clearly wilful disregard and deliberate defiance of statutory provisions. Levy of penalty is clearly warranted. Impugned order of CEGAT is set aside and order of Commissioner is restored. rsquo rsquo (Emphasis supplied) It can be noticed from the above reproduced paragraph of the judgment that the Hon rsquo ble Supreme Court has restored the order of the Commissioner in its original form. Since the order-in-original is restored as it was passed by the adjudicating authority by the Hon rsquo ble Supreme Court, the said order stands merged with the Order of the Supreme Court and as correctly pointed out by the learned Counsel and the doctrine of merger applies in this case, as any order passed by us would be incorrect proposition in law. Accordingly, we dismiss the appeal filed by the Revenue as not maintainable. (Dictated and pronounced in the Open Court)
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2006 (12) TMI 436 - CESTAT,AHMEDABAD
Refund of deemed credit - Limitation ... ... ... ... ..... ficial Gazette. rdquo It is the appellant rsquo s contention that no such limitation has been prescribed in any notification issued by the Central Government and, therefore, no time limit is applicable. In support thereof he cited decision of the Tribunal in the case of Gulshan Prints P. Ltd. v. Commissioner of Central Excise, Surat - 2004 (170) E.L.T. 345 (Tri.-Mumbai) and the Division Bench decision in the case of Sanghi Textiles Limited - 2006 (206) E.L.T. 854 (Tribunal) 2006 (77) RLT 268 (CESTAT-Bang.) wherein it was held that the time limit prescribed under Sec. 11B of CEA, 1944 will not be applicable in respect of refund of deemed credit nor the time limit prescribed under Notification No. 85/87 will be applicable. 3. emsp I have considered the submission. I find that the appellant rsquo s case is squarely covered by the two decisions of the Tribunal cited supra and accordingly I set aside the order of the Commissioner (Appeals) and allow the appeal. (Dictated in Court)
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2006 (12) TMI 435 - CESTAT, AHMEDABAD
Cenvat/Modvat - Documents for availing credit ... ... ... ... ..... r by the Assistant Commissioner under Rule 57G of Central Excise Rules, 1944 was not in order as the same does not have retrospective effect. 2. emsp I have considered the submissions. I find that it is not denied by the Revenue that the inputs were received and were duty paid in nature and have been utilized in the manufacture of final product. The provision under Rule 57G (11) are a clarificatory nature looking into the various disputes raised in the past and is in accordance with the spirit of the Modvat Credit Rules. I, therefore, find nothing wrong in the order of the Commissioner (Appeals) allowing the credit. The Revenue rsquo s appeal is accordingly dismissed. (Dictated in Court)
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2006 (12) TMI 434 - CESTAT, BANGALORE
Stay/Dispensation of pre-deposit - Demand - Reversal of credit - Notified goods ... ... ... ... ..... before the issue of Show Cause Notice, the goods were notified and immediately they reversed the credit on the basis of the calculation maintained by them. The calculation maintained by them is not disputed by the Revenue. This is not a case where they have not reversed the credit as in the cases cited by the learned JDR. As the amounts have been reversed before the issue of Show Cause Notice, although the goods were notified for a subsequent period, we are of the considered opinion that prima facie, they have satisfied the cited Rules. At best, for procedural lapse, they can be penalized, but they cannot be denied Modvat credit. In view of our prima facie findings, we grant full waiver and stay the recovery. As the amounts are very huge, the prayer made by both sides for early hearing is accepted. Appeals to come up for hearing on 20-3-2007. The stay application is allowed. There shall be no recovery during the pendency of the appeal. (Pronounced and dictated in open Court)
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2006 (12) TMI 433 - CESTAT, AHMEDABAD
Cenvat/Modvat - Input ... ... ... ... ..... sary that this grey fabric should pass through the hands of the dealer. If the processor has purchased directly from the manufacturer of grey fabrics, the grey fabrics purchased will be undoubtedly and undisputedly an inputs in the hands of the processor. The Cenvat scheme initially was between a manufacturer of raw materials and user of such raw materials. The Cenvat credit is always in relation to raw materials etc. referred to as inputs. 7. emsp In this case, merely because a dealer has been introduced in between the manufacturer of inputs and the manufacturer of finished goods, the nature of these products as input cannot undergo a change. It should be remembered that the Notification No. 35/03 is envisaging credit not merely for stock with the traders but also in respect of stock lying with the processors. 8. emsp In the light of the above, I accept the contention of the learned advocate for the appellant and allow the appeal. (Dictated and pronounced in the Open Court.)
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2006 (12) TMI 432 - CESTAT, MUMBAI
Remand - Scope of - Deemed credit - GI wires - Exemption ... ... ... ... ..... ent of duty. However, no credit was to be allowed if such inputs were clearly recognizable as being non-duty paid or charged to NIL rate of duty. It is only with effect from 20-5-88 that the Notification was amended so as to hold that credit would not be admissible if the inputs were clearly recognizable as being non-duty paid or wholly exempted from duty or charged to nil rate of duty. In the case of Arun Auto Spring and Manufacturing v. CCE, Rajkot 1990 (48) E.L.T. 543 (T) 1990 (28) ECR 210 it has been held by the Tribunal that the goods exempted from duty or goods being charged to nil rate of duty are different from one another. The period in dispute in the present case is prior to 20-5-88. Therefore, the ratio of the Tribunal rsquo s order cited supra is applicable on all fours to the present case. Following the ratio thereof, I hold that the credit of Rs. 3,29,689.70 is admissible to the appellants as credit on GI wires, set aside the impugned order and allow the appeal.
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2006 (12) TMI 431 - CESTAT, KOLKATA
Cenvat/Modvat - Wrong availment of credit ... ... ... ... ..... moved on payment of duty at concessional rate of 9.6 per cent ad valorem. The only infraction committed by them is that they failed to give the option before arriving the benefit of exemption Notification No. 8/03. The ld. Departmental Representative stated that no lenient treatment should be given to this State Govt. unit. He said this will become a precedent and it would be difficult for the Revenue. We do not understand the contention of the ld. SDR as the appellant is prepared to pay the differential duty and in view of several financial hardship faced by them we accede to their request for payment of differential duty within a period of one month from the date of this order along with the interest leviable under law. In case of default, Revenue is at liberty to proceed as per law. The demand for a sum of Rs. 1,52,886/- and equal penalty confirmed in the impugned order have been set aside. We allow the appeal in the above terms. (Dictated and Pronounced in the open Court)
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2006 (12) TMI 430 - CESTAT, MUMBAI
Cenvat/Modvat - Deemed credit ... ... ... ... ..... o confirmed the demand of Rs. 3,62,126/- together with interest and also imposed a penalty of Rs. 5,000/- on the assessees the Commissioner (Appeals) upheld the adjudication order hence this appeal. 2. emsp I have heard both sides. 3. emsp I see merit in the submission of the appellants that Cenvat credit once earned legally does not lapse and there can be no objection to its utilisation, in the light of the judgment of the Hon rsquo ble Calcutta High Court in Kusum Products Ltd. v. UOI 2003 (157) E.L.T. 258 (Cal.) and the decisions of the Tribunal in Garg Industries v. CCE, New Delhi 1996 (86) E.L.T. 495 and Dhar Cement Ltd. v. CCE, Indore 1996 (86) E.L.T. 515, holding that Modvat credit lawfully earned on a commodity can be utilised even after withdrawal of Modvat on that commodity and that there is no provision for lapse of Modvat credit lying unutilised at any point of time. I, therefore, set aside the impugned order and allow the appeal. (Pronounced in Court on 28-12-06)
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2006 (12) TMI 429 - CESTAT, NEW DELHI
Adjustment/Appropriation of refund of pre-deposit amount against another demand ... ... ... ... ..... adjustment of the refund claim against another pending case is not sustainable in any manner. The Hon rsquo ble Gujarat High Court in the case of National Steel Industries Ltd. (supra) held as under - ldquo 5. emsp Section 11 of the Act provides for adjustment/deduction of the amount payable to a person from whom a sum is recoverable or due under the Act. In the instant case although some Adjudication has been made against the petitioner, but the same is under challenge in appeal and his application for stay is also pending consideration before the Appellate Authority. Under the circumstance it cannot be said that the amount has become recoverable or due from him. rdquo 6. emsp The ratio of the above decisions are squarely applicable in this case and as such, respectfully following the decision of the Hon rsquo ble High Court and Tribunal, I set aside the order of the lower authorities and allow the appeal with consequential relief. (Pronounced and dictated in the open Court)
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2006 (12) TMI 428 - CESTAT, NEW DELHI
... ...
... ... ..... s are dismissed and the order passed by the Tribunal is affirmed. No costs. rdquo emphasis added 8. emsp In view of the categorical statement of law as reflected in the aforesaid decisions of Hon rsquo ble the Supreme in Allied Photographics rsquo Ltd. (supra) and Oriental Exports v. Commissioner in the affirming order, there is absolutely no scope for the revenue to try to rely on the provisions of sub-section (3) of Section 11B, because the Hon rsquo ble Supreme Court obviously would have taken into consideration the same provision. 9. emsp For the foregoing reasons, the portion of the impugned order to the extent that it directs the adjudicating authority to consider the appellant rsquo s refund claim in the light of Section 11B(2), is hereby set aside and the adjudicating authority is directed to act as per the other directions contained in the orders of the Commissioner (Appeals). The appeal is accordingly allowed. Dictated and pronounced in the open Court on 21-12-2006
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2006 (12) TMI 427 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Warehouse goods ... ... ... ... ..... i.-Bang.), in the above case it is held that Section 72 of the Customs Act is applicable when the goods are removed improperly in contravention of Sec. 71 ibid. None of the provisions of Sec. 72, including clause B of Section 72 are applicable to the instant case. 4. emsp Having convinced about the fact that the shortage goods were not accounted for properly by the custodian i.e. CWC, the applicability of Sec. 72 of Customs Act, to such a situation is in doubtful existence. This can be debated at length by considering all the facts and circumstances of the case at the time of disposal of the appeal. Suffice to find there is a prima facie case in favour of the importer, as the responsibility in payment of duty is likely to be fastened on the real custodian i.e. CWC, as per the case laws cited supra. Therefore, pre-deposit is waived and stay is granted from recovery there of pending disposal of the appeal. Application is allowed. List the appeal in its turn. (Dictated in Court)
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2006 (12) TMI 426 - CESTAT, CHENNAI
Adjudication - Jurisdiction ... ... ... ... ..... t to have remanded the case to the proper officer, the Additional Commissioner of Customs (Sea-Imports). 4. emsp We have heard ld. SDR also, who submits that the appellants were not entitled to raise the jurisdictional question after appearing before the Addl. Commissioner of Customs (Sea-Exports) and acquiescing in his jurisdiction. We have to overrule this objection inasmuch as the Additional Commissioner of Customs (Sea-Exports) has never had any jurisdiction in this case. 5. emsp In the above view of the matter, we have to correct the jurisdictional error. Accordingly, orders of the lower authorities are set aside and the case is remanded to the proper officer viz. the Additional Commissioner of Customs (Sea-Imports) for adjudication. It goes without saying that the adjudicating authority should give the parties a reasonable opportunity of being heard, before passing final order. 6. emsp All the appeals are allowed by way of remand. (Dictated and pronounced in open Court)
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2006 (12) TMI 425 - CESTAT, MUMBAI
Appeal - Limitation - Condonation of delay ... ... ... ... ..... filing the above appeal is inordinate and fact that the assessees waited for an order on their rectification of mistake application is not sufficient to hold that the delay has been satisfactorily explained, particularly when such application itself was filed beyond one year from the receipt of the impugned order. We therefore decline to condone the delay in filing the appeal. The application for condonation of delay is dismissed. 2. emsp Consequently the stay application is also dismissed and the appeal is dismissed as time barred. (Pronounced in Court)
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2006 (12) TMI 424 - CESTAT, NEW DELHI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... n respect of denial of credit, the contention is that the goods were returned back from their own depot, therefore, they are rightly taken credit. 2. emsp I find that the finding of the Commissioner is that the appellant produced four copy of Bill of Entry which merely bears the rubber stamp of DHL and it is not signed and appellant rsquo s name was not mentioned in the Bill of Entry. In these circumstances, I find no infirmity where the credit was denied in the impugned order. 3. emsp In respect of the invoices, the finding is that the original duty paying documents under which the appellant had discharged the duty at the time of clearance of goods from their factory was not mentioned in the invoice issued by the depot at the time of clearance of the goods. As appellant failed to establish any correlation in respect of goods cleared from depot regarding payment of duty, therefore, the credit was rightly denied, the appeal is dismissed. (Dictated and pronounced in open Court)
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2006 (12) TMI 423 - CESTAT,CHENNAI
Stay/Dispensation of pre-deposit - Demand - Clandestine removal ... ... ... ... ..... affidavits, which were sent under Certificate of Posting, were received by the addressees. Then only the onus of rebuttal of presumption is cast on the department in terms of the Hon rsquo ble High Court rsquo s judgment. In the absence of the requisite pleading of dates of receipt of affidavits by the department, we are not in a position to apply the cited case law to the facts of the instant case. Hence, for the present purpose, we have to take the prima facie view that the confessional statements of the Managing Director were not duly retracted and, accordingly, we shall direct the appellants to make pre-deposit of a reasonable amount of duty. 4. emsp The appellants are directed to pre-deposit Rs. 1,00,000/- (Rupees one lakh) within four weeks and report compliance on 22nd January, 2007. In the event of due compliance, there will be waiver of pre-deposit and stay of recovery in respect of the balance amount of duty and penalty. (Order dictated and pronounced in open Court)
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2006 (12) TMI 422 - CESTAT, AHMEDABAD
Confiscation and penalty - Smuggled goods - Proof of ... ... ... ... ..... ation to M/s. C. Arvindkumar and Co. would not render the legally imported gold bars as illegal imports. The commercial understanding between the parties inter-se cannot determine the legality or illegality of the gold bars. It is seen in this case that the revenue has not been able to discharge their burden that said gold bars were imported illegally while the appellant has been able to demonstrate that the said gold bars were in their licit possession. We have no hesitation in holding that the absolute confiscation of the seized gold bars is unsustainable, as all the documentary evidences produced indicate that the gold bars were legally imported. We set aside the confiscation of the said gold bars. Since confiscation of the gold bars is set aside, the consequent penalties imposed on the appellants are also liable to be set aside. 7. emsp Accordingly, the impugned order is set aside and appeals allowed, with consequential relief. (Pronounced in the open Court on 29-12-2006)
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2006 (12) TMI 421 - CESTAT, NEW DELHI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... he facts and circumstances of the case that the petitioner was entitled to Modvat credit considering the fact that firstly, the supplier had issued invoices in July and August, 1994, namely when the Adjudicating Authority had discretion available to it secondly, the supplier had applied for registration on 29-12-1994 and had been lsquo registered on 6-1-1995 and thirdly, the supplier had issued invoices which admittedly complied with the requirements prescribed by various Notifications. rdquo 7. emsp In the present case, I find that the dealer had not applied for registration at any point of time. Hence the judgment of Hon rsquo ble Gujarat High Court is not applicable in the facts and circumstances of the instant case. The plea taken by the learned Advocate that the dealer failed to apply registration due to ignorance of law, is not maintainable in the eye of law. Accordingly, the impugned order is upheld and the appeal is rejected. (Pronounced on 21-12-96 in the open Court)
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