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Case Laws
Showing 141 to 160 of 565 Records
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2001 (10) TMI 990 - CEGAT, NEW DELHI
Production capacity based duty - Induction furnace ... ... ... ... ..... Report given by Dr. Pande after visiting the factory of the Appellants on 8-3-2000. We observe differences in the measurements taken on 11-5-99 by the Department and taken on 8-3-2000 by Dr. Pande, Professor, Mech. Engg. Department of Harcourt Butler Technological Institute. Merely because the Director signed the report prepared by the Deputy Commissioner, it cannot challange the measurements if there is any mistake. We feel that the measurement of a furnace is a factual thing which should, in case of dispute, be verified by the Department by deputing an expert of its choice. We, therefore, remand the matter once again to the Adjudicating Authority with the direction to get the measurement of the induction furnace in question verified by an expert and decide the matter thereafter in accordance with law. The Appellants are also at liberty to show the relevant invoice and/or any other evidence/material to the Adjudicating Authority. The appeal is thus allowed by way of remand.
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2001 (10) TMI 988 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... e view that by itself would not amount to considering the products as plasters consisting of calcined gypsum under heading 25.20. 6. emsp Further, the fact that the Dy. Commissioner of Customs, Chennai has ordered classification of plaster grey and easy render under Customs Tariff heading 25.21 and 25.01 respectively is not of any assistance to the applicants in the face of our examination of the rival headings in the tariff. This is equally applicable to the arguments that the Custom House at Nhava Sheva has also classified them under Chapter 25. Since the products are prima facie classifiable under the heading determined by the department we see no point in the prayer for stay of encashment of Bank guarantees and accordingly reject the same. In view of this there is no necessity for passing any order on the prayer for waiver of pre-deposit of the duty since the duty amount stands secured by the furnishing of bank guarantees. 7. emsp The application is disposed off as above.
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2001 (10) TMI 987 - CEGAT, MUMBAI
Classification - Penalty and Redemption fine ... ... ... ... ..... e, which has not been produced. 2. emsp We however take note of the submission of the Counsel for the respondent that the issue was not clear and it genuinely believed that the goods were accessories of a computer mouse and therefore of a computer system and so could be freely imported. No use of these articles than with the computer mouse is apparent to us or has been brought to our notice. The importer could therefore have held a bona fide belief that these articles were classifiable as accessories of a computer mouse. (It is to be noted that we have not declined to accept this claim). There was therefore no justification for imposition of penalty, and considerable leniency in the matter of redemption fine is also justified. 3. emsp Therefore while we allow the Department rsquo s appeal and restore the classification that the Addl. Commissioner has determined, we decline to restore the penalty that he has imposed and fix the fine for redemption of the goods at Rs. 20,000/-.
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2001 (10) TMI 986 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit - Demand - Limitation ... ... ... ... ..... ted 12-9-2000 the applicant did not appear in person nor made available any fresh material before the lower authorities. We are of the view that the applicant has not made out a prima facie case in its favour. But taking into consideration the financial position as detailed in paragraph 12 of the application, where it is stated that the unit was lying closed since 1996, the accumulated losses as on 31-3-99 Rs. 2.63 crores, the plant and machinery and the factory premises were under Customs Bond and are hypothecated to financial institutions which deprived the applicant of raising amount to meet the demand, we direct the applicant to make deposit of an amount of Rupees one crore within a period of six weeks from today towards the duty demanded. There shall be a stay of the balance amount of duty as also penalty. 3. emsp To come up on 20-12-2001 for reporting compliance. 4. emsp If the interim order is complied with before that date, the appeal itself will be heard on that day.
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2001 (10) TMI 985 - CEGAT, MUMBAI
Confiscation of goods ... ... ... ... ..... eceipts are not genuine baggage on which appropriate duty was paid. In the case of the remaining baggage receipts, the persons named therein were either non-existent or not traceable. In these circumstances, the goods seized cannot be co-related with the baggage receipts. The department has discharged the burden of proof cast upon it in the present case where the goods involved are not notified and the burden shifted to the respondents to show that they were validly acquired. This burden has not been discharged by the respondent herein. The lower Appellate Authority has clearly erred in holding that the goods were cleared as per Baggage Rules and Customs duty was paid thereon. I, therefore, set aside the impugned order ordering confiscation of the seized goods with option to redeem the same on payment of fine of Rs. 50,000/- (Rupees fifty thousand) and also impose a penalty of Rs. 10,000/- (Rupees ten thousand) upon the respondent. 4. emsp The appeal is thus allowed as above.
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2001 (10) TMI 984 - CEGAT, MUMBAI
Modvat/Cenvat - Modvat on inputs ... ... ... ... ..... ut any such reliance. On the other hand I find that the admissibility of such goods has been set out by this Tribunal in the following judgments 1997 (96) E.L.T. 323 and 1998 (97) E.L.T. 307 3. emsp As regards the so called inadequacy in the bill of entry I find that Board in their Circular No. 211/45/96-CX, dated 14-5-1996 had directed that where the bill of entry showed registered office as the recipient and where the goods were used in the factory the credit should not be disallowed. In the present case the assessee is on a stronger footing. I find that the Commissioner (Appeals) orders are correct in law. 4. emsp The appeal from the Revenue is dismissed.
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2001 (10) TMI 983 - CEGAT, KOLKATA
Modvat/Cenvat - Declaration ... ... ... ... ..... rders are silent on the reversal of the Modvat credit, but only denied the availment of the same. The entire exercise is revenue-neutral. Further, vide their letter dated 21-2-97, the appellants had intimated the Assistant Commissioner about the above position. As such, I find that the said letter should have been taken by the authorities below as a sufficient intimation to the Revenue. However, as the invoices showing clearance of the Copper Alloy Bars by reversing the Modvat credit originally availed by them, have not been produced before me, I remand the matter to the Assistant Commissioner for looking into the said aspect and to allow the Credit after verifying the said invoices. The appeal is disposed of in the above terms. 4. emsp Vide the impugned Order, the Commissioner (Appeals) has remanded a portion in respect of credit on lsquo greases rsquo to the Assistant Commissioner for de novo adjudication. The said portion of the impugned order is not being disturbed by me.
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2001 (10) TMI 982 - CEGAT, BANGALORE
Refund - Unjust enrichment ... ... ... ... ..... to conclusively prove that the duty burden was not passed on to the ultimate customer. I find that Section 11B(2), very clearly prescribe that once the Asst. Commissioner is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable, he is to make an order accordingly and the amount so determined shall be credited to the Fund. Therefore the orders of lower authorities deciding the refund claim filed, are not as required under the law, once the authorities come to a conclusion that the refund is eligible, they should have proceeded to pass an order of crediting the amount to the welfare fund. I do not find any such orders in the lower authorities order impugned before me. The said orders should therefore requires to be set aside and the matter remanded back to the original authorities for de novo consideration. Keeping all issues open to determine the matter afresh and pass an order as per law. 4. emsp Appeals disposed of in the above terms.
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2001 (10) TMI 981 - CEGAT, BANGALORE
Modvat/Cenvat - Modvat on inputs - Lubricating oil and greases - Eligible for Modvat credit ... ... ... ... ..... conclude that electrodes used for maintenance of machinery and machines which are in nature of capital goods in turn used in manufacture of final products then such electrodes would be covered by Rule 57A. I find that relying on the decision in the case of G.D. Rathi Steel Ltd. by a Bench of this Tribunal as reported in 2001 (130) E.L.T 819 (Tri-Delhi) , wherein it was held that welding electrodes being not used in or in relation of manufacture of goods, Modvat credit was not admissible under Rule 57A of Central Excise Rules, 1944. I am bound by this Bench decision and following the same, I disallow the credit on welding electrodes under Rule 57A in the facts of this case. 3. emsp In view of my finding the appeals are disposed off in the above terms i.e. credit on lubricating oil is admissible while credit on welding electrodes for manufacture of plants and machinery is not admissible under Rule 57A. Thus these appeals and cross objection are disposed off in the above terms.
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2001 (10) TMI 980 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit - Demand ... ... ... ... ..... rom his premises and relied upon by the department do not indicate at all that he was indenting agent for the seized machinery. He also submits that in terms of show cause notice the charge of under-valuation pertains to the machines imported through the other intending agent, namely, M/s. Inom. As to the existence of the documents in his office which were seized he submits that they are not made by him but by a representative for M/s. Sisma, who had left then for getting typed in the office, for being collected latter, which they did not collect. 8. emsp We have seen the photocopies of the documents seized. We find that the documents by themselves which are not explained by any person in their statements cannot be a basis for sustaining the charge of under-valuation. 9. emsp Finding, prima facie, merit in the various prayers made by the three applicants we grant prayers and waive the condition of pre-condition of the deposit of the penalties imposed and the duties confirmed.
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2001 (10) TMI 970 - CEGAT, MUMBAI
‘Rural area’ - Meaning and scope - Demand - Limitation - Certificate of Tahsildar sufficient to sustain assessee’s claim
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2001 (10) TMI 967 - CEGAT, CHENNAI
EXIM Policy, 1992-97 - Medicine - Precedent and practice ... ... ... ... ..... t to export obligation. This item namely galangan roots has not been mentioned under the Restricted item and therefore, the plea of the ld. Counsel for the Respondents and the order passed by the Commissioner on this issue are legal and proper. However, a small Custom House like Tuticorin is required to follow the practice adopted by the Chennai Custom House a major Custom House until the practice followed was patently wrong. This item can be bought only from a shop which deals with Ayurvedic drugs and is not at all available in any other shop. The Commissioner of Customs, Trichy has also not challenged the report of the Chemical Examiner and also indigenous material medicine which supports the contention of the Respondent. In view of the above, I do not find any infirmity in the order passed by the Commissioner of Customs (Appeals) and therefore I reject the appeal filed by the Revenue by upholding the order passed by the Commissioner (Appeals), Chennai. Ordered accordingly.
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2001 (10) TMI 962 - CEGAT, MUMBAI
Reference to High Court - Penalty - Reduction of penalty - Adjudication ... ... ... ... ..... question of law arising from this order. 3. emsp I have seen the question of law which in effect is not question of law at all. For a reference to be made to High Court there must arise a very substantial question of law. The adequacy or otherwise of the quantum of penalty cannot become a question of law. The quantum of penalty has to be adjudged by an adjudicating or appellate authority regard having been basically given to the facts before them. The fact that the law was contravened by the importer is evident from the fact that penalty was imposed upon the importer. Each adjudication is a separate proceeding and the past history of the offender is not an ingredient thereof. Therefore whether the importer was a habitual offender or not, is not a point to be posed before the Tribunal. There are other avenues open to the customs like prosecution or preventive detention in dealing with such persons. 4. emsp Finding no prima facie merit in the application the same is dismissed.
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2001 (10) TMI 961 - CEGAT, MUMBAI
Modvat/Cenvat - Modvat on inputs ... ... ... ... ..... hand, it is the contention of the assessee that gummed tapes are used for sealing the cartons in which the final products are packed and definitely fall within the meaning of inputs in the nature of packaging materials. The assessee cites the decision of the Tribunal in the case of Hindustan Lever Ltd. v. CCE, Calcutta-II 1994 (70) E.L.T. 595 which supports their contention. The assessee also submits that after the present demand was raised, subsequent show cause notices were issued and have been adjudicated upon by the Dy. Commissioner dropping the proceedings initiated on the ground that gummed tapes were not covered by the definition of inputs. 2. emsp I have carefully considered the rival submissions. I agree with the assessee that gummed tapes are in the nature of packing material and since Rule 57A defines inputs as including packing materials, the item in dispute is eligible to credit in terms of Rule 57A. I, therefore, uphold the impugned order and reject the appeal.
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2001 (10) TMI 960 - CEGAT, BANGALORE
Modvat/Cenvat - Invoices - Service of order by post ... ... ... ... ..... quo by the date they had issued these invoices, the order of the Commissioner (Appeals), is found to be based on presumptions and assumptions and such an order cannot be upheld. (b) The Tribunal in a series of cases has upheld that the presence of a godown by the dealer is not a necessity, in fact instructions and trade notices that the ownership of godown with a registered dealer is not a requirement envisaged and a dealer rsquo s registration under 57GG were issued. Therefore, I do not find any reasons for the cancellation of the registration of the first stage dealer as in this case to be valid. However, the first stage dealer is not before me in the appeal. This cancellation of the registration therefore of the lsquo first stage dealer rsquo on an invalid reason, does not enthuse me to deny the Modvat credit of Rs. 14,731/- obtained on invoices of second stage dealer in this case. 3. emsp I would therefore set aside the order, allow the appeal with consequential benefits.
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2001 (10) TMI 959 - CEGAT, BANGALORE
Modvat/Cenvat - Modvat on capital goods ... ... ... ... ..... at the Supreme Court decision does not help the case of the appellant since the finding and stand of the Revenue has all along being, in this case, that the computer system was not used for manufacture. (c) The plea in the grounds taken now, of drawing/designing being the first stage of manufacture of the product is to be supported by material evidence when in the written reply to the SCN it is found that the use has been explained - ldquo will be used mainly for production, planning and monitoring of production including design, drafting hellip ... rdquo Thus, the purpose of drawing/design preparation is incidental and not primary. (d) The arguments in the grounds before us that subsequent exclusion of Chapter 8471 will not affect the eligibility under the earlier words ldquo Plant rdquo included, is not accepted, since the amendments and subsequent exclusions are only to clarify what was implicit earlier in this case. 5. emsp In view of my findings, the appeal is dismissed.
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2001 (10) TMI 958 - CEGAT, NEW DELHI
Modvat/Cenvat - Credit, utilization of ... ... ... ... ..... d the last day of a month for payment of duty relating to the second fortnight of the month. rdquo 5. emsp It is thus apparent that the payment of duty can be made only out of the CENVAT credit available on the Fifteenth day/Last day of the month, as the case may be. Though the duty for the first fortnight of the month is to be discharged by the twentieth day of that month the manufacturer can utilize the CENVAT credit only to the extent such credit is available on the fifteenth day of the month. He can not utilise the CENVAT credit taken by him in records during sixteenth to twentieth of that month. In view of this provision of law, a manufacturer who has defaulted in making the payment of duty by specified dates, can not be allowed to discharge his duty liability out of the CENVAT credit made available to him during the period which is subsequent to the period for which he defaulted in making the payment of duty. We, therefore, find no merit in the appeal which is rejected.
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2001 (10) TMI 957 - CEGAT, NEW DELHI
Rectification of Mistake ... ... ... ... ..... me was contrary to an approved classification list and against the classification of the products approved by the Tribunal in the Matador Foam case. They also submitted that the decision in the Matador Foam case was correctly relied upon by the Tribunal. 4. emsp We find that the proceedings which were subject matter of our Order Nos. 575 and 578/99-D, dated 16-4-1999 1999 (113) E.L.T. 589 (T) related to issue of show cause notices for recovery of short levy on account of wrong availment of exemption Notification No. 175/86. The classification order of Commissioner (Appeals) was not brought to our notice during the hearing of the appeal. Therefore, no apparent error has taken place on this score. The second issue as to whether the ratio of the Matador Foam decision is applicable to the present case, is a matter for detailed arguments. That cannot be the basis for a Rectification of Mistake application. 5. emsp In view of the position noted above, the ROM fails and is rejected.
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2001 (10) TMI 956 - CEGAT, NEW DELHI
Penalty - Foreign origin goods ... ... ... ... ..... y lsquo AMAR rsquo was indicated and there was no address and since complete address was not given, the consignment should have been examined before booking the consignment. He, therefore, submits that the authorities below have rightly imposed penalty on the appellants. 5. emsp We have heard the contentions of both sides. In the instant case, the goods were seized at delivery office. The address etc., was taken at the booking office. No enquiries were conducted at the booking office as to how incomplete address was accepted. We find that there was no enquiry conducted. We also note that there was no evidence on record to show that the appellants had knowledge that the goods were of foreign origin or were of smuggled nature. Thus, no case has been made out against the appellants. In the circumstances, the impugned order in regard to the appellant is set aside and the appeal is allowed. Consequential relief, if any, shall be admissible to the appellants in accordance with law.
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2001 (10) TMI 955 - CEGAT, KOLKATA
Demand - Limitation - Cess on parts and accessories of automobiles ... ... ... ... ..... returns would amount to misstatement in the statutory records and documents, cannot be accepted inasmuch as if the Revenue was of the view that parts and accessories are also leviable to Cess, nothing prevented the proper officer to direct the appellants to pay Cess on the said goods and approve the Classification Lists accordingly. The approval of the Classification Lists showing non-payment of Cess in respect of the parts and accessories, only reflects upon the understanding of the Revenue that the said parts and accessories were not leviable to Cess. In these circumstances, it cannot be said that the appellants have indulged in any misstatement or suppression with an intention to evade payment of duty. Accordingly, we hold that the demand raised for the period from 1-12-90 to 25-5-94 by show cause notice dated 1-12-95, is barred by limitation. Accordingly, without expressing our opinion on the merits of the case, we set aside the impugned order on the point of limitation.
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