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Case Laws
Showing 121 to 140 of 503 Records
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2005 (11) TMI 413 - CESTAT, NEW DELHI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... their utilization in their manufacturing process, I am of the view that a more liberal view is called for here over looking the minor discrepancies. The difference in indication of time could be due to the use of shifting computer mode to manual mode and again shifting back, which can be ignored. I do not find any merit in the observation that a cross reference is called for in the computerized invoice, particularly since the Department has not questioned about the receipt and utilization of duty paid goods. As regards the difference noticed in vehicle number, I find that again this could have occurred due to the shifting from computer mode to manual mode and then back to computer mode. Non-mentioning of the grade of the product in the manual invoice, in my view, cannot be taken as a ground for denying credit. 7. emsp In view of the above findings, I set aside the impugned order of the lower authorities in toto and allow the appeal. (Dictated and pronounced in the open court)
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2005 (11) TMI 412 - CESTAT, KOLKATA
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... sioner (Appeals) who has observed to the effect that if Classification List/Price List is submitted by the assessee but approved by the Department later, then the clearance made in the meantime has to be deemed provisional even if B-13 Bond is not executed, as is laid down by the Honourable Apex Court in the case of Samrat International (P) Ltd. v. C.C.Ex. reported in 1992 (58) E.L.T.61 (S.C.). In view of this, if in the instant case the Credit in question was taken by the assessee on or after 29-8-2000, then it is perfectly in order. 4.1 emsp The Commissioner (Appeals) has observed that in the case of Eicher Ltd. reported in 2003 (156) E.L.T. 485 (T.) 2003 (58) RL-64 (T), the Tribunal has held that the Notification No. 51/2000-C.E.(N.T.) dated 29-8-2000 is clarificatory in naure and gave its benefit with retrospective effect. In view of the above decision, I do not find any infirmity in the Order passed by the Commissioner (Appeals). I reject the appeal filed by the Revenue.
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2005 (11) TMI 411 - CESTAT, BANGALORE
Refund - Unjust enrichment ... ... ... ... ..... on 20-9-1991, therefore it is very clear that a refund granted finally and unconditionally in 1990 cannot be reopened in the year 1991 relying on the Supreme Court s decision in Mafatlal Industries case 1997 (89) E.L.T. 247 (SC) . Had the refund been kept pending even as on 20-9-1991, the Revenue would be at liberty to examine the unjust enrichment aspect while sanctioning the refund. We understand the Mafatlal s decision only in this manner. In the present case, the Commissioner s (Appeals) Order has been upheld by the Tribunal consequent to the Tribunal s Order, the refund was granted in the year 1990. It should be borne in mind that there was no enactment with regard to unjust enrichment in year 1990, when the refund was granted in 1990, the matter attained finality. Hence, there is no merit in the Order-in-Original, we set aside the same and allow the appeal with consequential relief. (Operative portion of this Order was pronounced in open court on conclusion of hearing)
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2005 (11) TMI 410 - CESTAT, CHENNAI
... ...
... ... ..... appellants despite notice. 2. emsp I have examined the records of the case and heard ld. SDR. Rule 57U(6) of the C.E. Rules, 1944 was not in force during the period of dispute (1994-95). Hence the provision was not invocable against the assessee on the facts of this case. The penalty is vacated. The appeal stands allowed. (Order dictated and pronounced in open Court)
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2005 (11) TMI 409 - CESTAT, MUMBAI
Demand - Limitation - Suppression of facts ... ... ... ... ..... o 30-3-1995 that there was no suppression on the part of the assessee. 4. emsp Heard both sides. 5. emsp The Commissioner allowed the appeal before him holding that the demand is time barred. The Revenue relies upon the decision of the Tribunal in Nizam Sugar Factory v. CCE 1999 (114) E.L.T. 429 without exactly stating how and why. It is clear from the records that the show cause notice was issued invoking larger period of limitation merely alleging that the respondent misdeclared the goods. The respondent contends that he declared the goods as remnants of aluminium rods because they were indeed remnants arising out of the process of manufacture. We agree with the Commissioner rsquo s contention that there was no suppression of facts on the part of the respondent. In any case the whole exercise would have been revenue neutral had he paid duty on the goods, this is because the respondent is receiving back the goods after processing from the job worker. 6. emsp Appeal rejected.
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2005 (11) TMI 408 - CESTAT, BANGALORE
Appeal - Limitation - Specific statute ... ... ... ... ..... oards and Doors (supra). The A.P. High Court in the case of Shanti Alloys Pvt. Ltd. (supra) has also taken a similar view. This Bench in the case of HMT Ltd. (supra) and in the case of Precision Tooling Systems Ltd. (supra) has also followed the same view. In view of the majority of the High Courts judgments holding the view that the adjudicating authority does not get power to condone the delay beyond the statutory limit, therefore, both the appeals cannot be entertained. The Tribunal cannot exercise any power where the statute has fixed a period for condonation of delay in a case where the statute has not given any power to the authority to condone the delay beyond the statutory period on sufficient cause being shown. Therefore the Commissioner rsquo s (Appeals) order rejecting the appeals on time bar is a correct order. There is no need to interfere with the same. The stay applications and the appeals are dismissed. (Dictated and pronounced in the open Court on 23-11-2005)
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2005 (11) TMI 407 - CESTAT, KOLKATA
Cenvat/Modvat - Deemed credit ... ... ... ... ..... bservation of the Commissioner (Appeals) order is not supported or passed by the lower authority. The appellant submitted that they have made cheque and this is verifiable. This Tribunal has already held in the case referred to above that deemed credit of 12 of invoice value available in terms of Notification No. 29/2000-C.E. (N.T.) and not only duty paid on inputs. The appellant is entitled credit as on 1-4-2000 in terms of Board Circular law applicable on the date would govern calculation of credit as admissible to the appellant. I find that the appellant rsquo s case should have been covered by the said ratio in case of J.M.G. Steel (P) Ltd. as referred to above. In view of above, I remand the matter to the lower authority to verify whether the conditions applicable to Notification No. with regard to the cheque payment are satisfied or not. He should pass speaking order in this regard after observing the principle of natural justice. The appeal is allowed by way of remand.
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2005 (11) TMI 406 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... he extended period is rightly invoked rdquo . That authority apparently was not right in invoking the extended period without finding against the assessee any intent to evade payment of duty. In the facts of this case, prima facie, it cannot be said that the assessee short-paid duty with intent to evade payment of duty. In spite of absence of specific Rule, they chose to follow the erstwhile provisions of Rule 57S(2) insofar as the first instance of removal of capital goods was concerned. On the second occasion of removal of capital goods, there was a Board rsquo s Circular on the subject, which was scrupulously followed by the assessee. In these circumstances, it can hardly be said that the assessee conducted themselves with intent to evade payment of duty. Prima facie, they have a good case on limitation as well. 3. emsp In the result, there will be waiver of pre-deposit and stay of recovery in respect of the duty and penalty amounts. (Dictated and pronounced in open Court)
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2005 (11) TMI 405 - CESTAT, BANGALORE
Refund - Protest - Pending of Investigation ... ... ... ... ..... ommissioners has power to condone the delay in a circumstance when the inputs were received after a period of 60 days. The Commissioner has noted that the proviso of Rule 57 was amended to 180 days and found that this is only a condonable offence. Therefore, he noted that the amount deposited was required to be refunded. He also noted that the assessee had deposited the amount only on the insistence of preventive officers. Therefore it is to be construed as a deposit under protest. On similar facts in the cited judgments, such deposits are treated as deposits made lsquo under protest rsquo . Further more, the Apex Court in the case of Mafatlal Industries Ltd. v. UOI 1997 (89) E.L.T. 247(S.C.) has clearly ruled that if duty deposits are made during investigation, then it is to be construed as deposit made under protest. The order passed by the Commissioner is legal and proper and there is no infirmity in the same. The appeal is rejected. (Pronounced and dictated in open Court)
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2005 (11) TMI 404 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Demand ... ... ... ... ..... s Bills the duty was demanded on the basis of contents of these two consignments. 5. emsp In this case the demand was quantified on the basis of two seized consignments. The revenue case is that seized consignments were having gold and watch and other variable goods such as computer parts etc. which were not mentioned in the Airways Bills. The duty is not demanded in respect of seized consignments as the goods were confiscated absolutely. The duty is demanded in respect of earlier consignment on the basis of the contents of seized consignment. In this situation prima facie, we find cross argument is that the present demand is only on the basis of assumption and presumption that in earlier consignment also contains same goods such as gold biscuits and computer parts etc. Prima facie, in this situation, we find merit in the application, therefore, pre-deposit of the whole duty is waived for hearing of the appeal. Stay petition is allowed. (Dictated and pronounced in open Court)
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2005 (11) TMI 403 - CESTAT, BANGALORE
Production capacity based duty ... ... ... ... ..... Apex Court judgment rendered in the case of U.O.I. v. Supreme Steels and General Mills 2001 (133) E.L.T. 513 (S.C.) the determination of ACP was required to be done in terms of the rules at the beginning of the year. Therefore, the contention raised by the appellants that they had closed the factory in April, 1998 itself by giving due intimation to the Department, is required to be accepted. The copy of the letter dated 26-3-98 clearly shows the seal of the Department duly acknowledging the receipt of the same. Therefore the findings given by the lower authority that intimation of the closer of unit from 1-4-98 had not been received by the Department cannot be accepted. Furthermore, the determination of ACP is required to be made in terms of the Apex Court judgment cited above, at the beginning of the year. Therefore the order passed in October, 98 cannot be sustained for recovery of the demand. The appeal is allowed. (Dictated and pronounced in the open court on 17-11-2005)
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2005 (11) TMI 402 - CESTAT, BANGALORE
Refund - Cash refund ... ... ... ... ..... emsp The learned Consultant submits that they are placed in a better position than all cases where the credit has been paid in modvat/cenvat account. He submits that the amount was paid under PLA and therefore, the credit to be made in the PLA account, in terms of Commissioner (Appeals) rsquo s order, is correct. 4. emsp On a careful consideration, I do not find any merit in this appeal. The Commissioner (Appeals) has rightly noted that the assessees had paid the amount through PLA and they had not maintained RG 23C Account as they were under the compounded levy scheme. In a situation where modvat/cenvat account is maintained and where duty has been paid, the Tribunal, in the noted case, has upheld the grant of refund by cash. The assessee is placed in a better situation than this one. The Commissioner (Appeals) has rightly upheld the assessees rsquo plea for refund through PLA. There is no merit in this appeal and the same is rejected. (Pronounced and dictated in open Court)
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2005 (11) TMI 401 - CESTAT, MUMBAI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... tification. In the appeal before the Commissioner rsquo s appeal at page No. 59 in para 4, the appellants have claimed the benefit of the said notification. However, it is seen from the order of the Commissioner (Appeals) that Commissioner (A) has failed to consider the said notification and the appeals have been dismissed on the ground that the appellants should have filed the triplicate copy of the invoices instead the original invoice issued by the dealer. Since Notification No. 34 permits availment of the credit on the basis of the dealer rsquo s invoice in original, I do not find any justification in disallowing the appeals. The impugned order is set aside and the appeals filed by the appellants are allowed. (Dictated in Court)
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2005 (11) TMI 400 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Modification of stay order -Cenvat/Modvat ... ... ... ... ..... Finance Bill, 2005, the question of paying the amount by instalments with interest would not have arisen. The case would have been entirely different, had the applicants withdrew the appeal and represented before the Commissioner that they would like to avail of the facility accorded in the Finance Bill, 2005. As it is the applicant wants to retain all options open and take advantage of the facility provided in the said Act. We observe that the facility to pay in instalments is for those who have agreed to pay the sum determined in accordance with Clauses (ii) and (iii) of sub-section (5) of the Finance Act. In view of what has been discussed above, we are not inclined to modify the Stay Order dated 8-2-2005 of the Tribunal. We, however, accord another four weeks time to deposit the amount stated in the above said Stay Order from the date of receipt of this order and report compliance. 9. emsp Failure to do so will result in dismissal of appeal itself. Compliance on 30-1-2006
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2005 (11) TMI 399 - CESTAT, BANGALORE
... ...
... ... ..... s Order dated 8-12-2004. The charge of Commissioner (Appeals), Visakapatnam was entrusted to Dr. H. B. Pradhan, but the impugned order has been passed by Smt. Shakuntala. Prima facie, the contention of the Revenue rsquo s appeal is found to be reasonable. An officer who has no jurisdiction has passed the impugned order. Hence we are inclined to stay the application of the impugned order. This application stands disposed of accordingly and the appeal would come up for hearing in due course. (Dictated and pronounced in the open Court on 11-11-2005)
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2005 (11) TMI 398 - CESTAT, MUMBAI
Cenvat/Modvat - Inputs ... ... ... ... ..... the provisions of Rule 2(g) of the Cenvat Credit Rules, 2002 in terms of Explanation 2 of the said Rules. Similarly, a division bench of the Tribunal in the case of Bellary Steel and Alloys Ltd. v. CCE, Belgaum 2005 (180) E.L.T. 92 (T) 2005 (180) E.L.T. 92 (Tri.-Bang.) has held such inputs to be eligible for Modvat credit. As such we note that the issue stands decided in favour of the appellants. 4. emsp In any case and in any view of the matter, the entire exercise is revenue neutral. Inasmuch as after availing the benefit of Modvat credit on the inputs, the appellants were within their option to pay duty on the capital goods and then again to avail Modvat credit of the duty so paid, which could have been utilised by them towards payment of duty on the final product. Thus, in essence, the entire exercise is only paper based and revenue neutral. 5. emsp In view of the foregoing, we set aside the impugned order and allow the appeal with consequential relief to the appellants.
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2005 (11) TMI 397 - CESTAT, CHENNAI
Show cause notice - Scope of ... ... ... ... ..... e 173GG is not sustainable under law, they are liable for penalty under Rule 173Q since they are not covered under Rule 173G, even though the Rule 173Q is not mentioned in the SCN. rdquo 2. emsp After hearing both sides and considering their submissions, I am unable to sustain the above view of ld. Commissioner (Appeals). To impose any penalty on the assessee under a provision of law not invoked in the relevant show cause notice was beyond the jurisdiction of the lower appellate authority. 3. emsp For the reason stated above, the penalty imposed on the appellant under Rule 173Q is set aside and this appeal is allowed. (Dictated and pronounced in open Court)
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2005 (11) TMI 396 - CESTAT, MUMBAI
Appeal to Appellate Tribunal - Grounds ... ... ... ... ..... this Tribunal but they had never availed of this. They have also not bothered to file Cross Objection in the matter. Now, at this late stage they have come up with arguments, for what can be referred to as ldquo fortuitous benefit. rdquo Relying upon the Hon rsquo ble Supreme Court rsquo s order in Jamshed Hormusji Wadia rsquo s case and the Tribunal rsquo s order in the case of G.K. Enterprises discussed above, I do not find any merits in the arguments advanced by the respondent in this case. At the same time in respect of arguments made by the Revenue for enhancement of penalty too. I am not in agreement particularly due to the sea-change effected by the Larger Bench of this Tribunal in Machino Montell (I) Ltd. Case. 11. emsp I, therefore, do not find merits in the arguments of the Revenue as well, in so far as enhancement of penalty is concerned. I therefore uphold the order of the Commissioner (A) rejecting the appeal filed by Revenue. (Pronounced in Court on 14-11-2005)
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2005 (11) TMI 395 - CESTAT, KOLKATA
Stay/Dispensation of pre-deposit ... ... ... ... ..... eals on merits but has dismissed the appeals for non-compliance, I cannot go into the merits of the case. I can at the most consider whether the appellant has made out a prima facie case for waiver of pre-deposit of duty or not. In this case I find that the appellants have not made out a prima facie case for waiver of amount of duty in this case. In view of the above, I direct the appellants to deposit an amount of Rs. 15,000/- (Rupees fifteen thousand only) within a period of eight weeks from today and report compliance of the same on 10th January, 2006 to the Commissioner (Appeals) of Central Excise, Kolkata IV. On such deposit being made and proof of the same being produced before the Commissioner (Appeals), the Commissioner (Appeals) will hear the matter and decide the case on merits. Both the appeals are allowed by way of remand to the Commissioner (Appeals) subject to compliance of the pre-deposit. Both the SPs get disposed of accordingly. (Pronounced in the open Court)
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2005 (11) TMI 394 - CESTAT, KOLKATA
Confiscation of goods - Non-accountal in RG 1 register - Penalty ... ... ... ... ..... there was an intention to remove the goods clandestinely and Rule 173Q now Rule 25 requires mens rea for imposition of the penalty and confiscation of the goods not accounted. Following the said decision, I hold that confiscation of the said goods are not correct and impugned order is set aside. Consequently, the Redemption Fine imposed upon the appellant is also set aside along with the penalty imposed on the appellant. But I do find that the appellant have violated the provisions of Central Excise Law inasmuch that they have not recorded the in-process goods anywhere in the records, which was the duty of the appellant, to record these somewhere in the records in order to justify and prove that point to the authorities. In view of this I impose a penalty of Rs. 5,000.00 (Rupees Five Thousand only) under Rule 27 of the Central Excise Rules, 2002. The penalty has to be paid forthwith. The appeal allowed partly as per modification mentioned above. (Pronounced in the open Court)
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