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Case Laws
Showing 161 to 180 of 538 Records
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2000 (5) TMI 734 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... t of India v. Madras Rubber Factory Ltd. - 1995 (77) E.L.T. 433 for the reason that the position in law has changed. We are prima facie unable to see how, by the amendment carried out to Section 4, the position with regard to inclusion of freight has undergone any change. It appears to us prima facie that the effect of the amendment is to include, as a place of removal, the depot in addition to the factory gate. In that case, it would follow that the price prevailing at the factory gate for removal from there, which ultimately would not include freight, and the price prevailing at the depot for removal from the depot, which again would by logical extension not includible, is what should be applied. 4. emsp In this prima facie view of the matter, we waive deposit of the duty demanded and stay its recovery. Accepting the contention of the advocate for the applicant that this is a repetitive issue, we accede to the request for out of turn hearing and list the appeal on 2-8-2000.
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2000 (5) TMI 733 - CEGAT, KOLKATA
Valuation - Contract price ... ... ... ... ..... ed in 2000 (117) E.L.T. 538 1998 (98) E.L.T. 3 (S.C.) 1998 (25) RLT 1 2000 (115) E.L.T. 100 (Tribunal) 2000 (36) RLT 484 2000 (37) RLT 573 2000 (36) RLT 622 and a number of other decisions. The gist as all these decisions is that the invoice price cannot be discarded except on the strength of a clear evidence that the invoice is not genuine and does not reflect the transacted price. The burden of proving the charge of undervaluation lies heavily upon the department and is required to be discharged by necessary evidences. In the instant case the Revenue having accepted the price in respect of the first consignment, was not justified in rejecting the price in respect of the second consignment which was a part of a same contract. As such we fully agree with Shri Bagaria that the Revenue has not been able to sustain the charge of undervaluation against the appellants. Accordingly, after hearing Shri Kennedy, ld. JDR we allow the appeal with consequential relief to the appellants.
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2000 (5) TMI 731 - CEGAT, MUMBAI
Modvat - Duty paying document - Precedent ... ... ... ... ..... mteke for the revenue and Shri S.P. Sheth for the respondents. 3. emsp When the original order was made, referred instruction of the Board was not in existence. The existence thereof was not brought to the notice of the Commissioner. On the other hand a reference application filed relating to the cited finding of the Tribunal was dismissed in terms of the judgment reported in 1994 (71) E.L.T. 1017. When the Tribunal has given a judgment on merits on examination of the relevant details, an internal communication of the Board to the Commissioner cannot upset the ratio thereof. The orders of the Commissioner are upheld. The revenue appeal dismissed.
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2000 (5) TMI 730 - CEGAT, NEW DELHI
Waste, Parings and Scrap - Factory - Penalty ... ... ... ... ..... rings and scrap shall not be available to waste, paring and scrap cleared from factory in which other excisable goods, other than the exempted goods are manufactured. As in the present case, the appellants were manufacturing excisable goods other than the exempted goods, in the same factory, the waste, paring and scrap cleared by the appellants are not entitled for the benefit of Notification No. 89/95-C.E. 14. emsp In respect of mandatory penalty, as the appellants filed the declaration on 23-7-1996 claiming the benefit of Notification No. 89/95-C.E. without disclosing the fact that they were also manufacturing excisable goods in the same factory, therefore, we find no merit in the arguments of the appellants in respect of imposition of penalty under Sec. 11AC of the Central Excise Act as the period for which the duty is being demanded is after the introduction of Section 11AC. 15. emsp In view of the above discussion, we find no merit in the appeal and the same is rejected.
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2000 (5) TMI 727 - CEGAT, MUMBAI
Modvat - Duty paying document ... ... ... ... ..... s that the provisions of Rule 52A(6) and 57GG(5) makes it mandatory to have printed serial numbers and must be followed. An unreported decision of the Tribunal in Akanksha Steels (P) Ltd. v. CCE is cited in support. 4. emsp Copy of the Tribunal decision relied upon has not been produced we are therefore unable to accept it since we are not aware whether it relates to the issue or not. However, the Tribunal in its decisions in Ajai Acetates (P) Ltd. v. CCE - 1999 (33) RLT 316 Hindustan Radiators Co. v. CCE - 1999 (32) RLT 206 and Nezon Tubes Limited v. CCE - 1999 (104) E.L.T. 559, held that, the mere fact that the invoices do not have numbers which were printed, by itself could not justify denial of credit. It is not the case of the department before us that the goods were not received by the respondents, or no duty had been paid on it. We therefore do not find any reason to interfere with the Commissioner (Appeals) rsquo s order. 5. emsp The appeals are accordingly dismissed.
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2000 (5) TMI 724 - CEGAT, NEW DELHI
Demand - Clandestine manufacture and removal ... ... ... ... ..... 85, 87, 90, 90 and 87/per kg respectively. 12. emsp While the case of the Revenue is based on the discrepancies in the purchases and supplies of the yarn, we consider that for demand of duty what was required was the fact of manufacture. We have carefully gone through the evidence on record but we do not find that any plausible case has been made out to substantiate the allegation that the yarn supplied to DGS and D was the yarn manufactured by the appellants themselves in their mill. For establishing the allegation of such a nature, we consider that type of material placed on record, was not alone sufficient. 13. emsp After taking all the relevant facts into consideration, we consider that the allegation of clandestine manufacture is not proved. We do not agree with the view taken by the learned Collector of Central Excise, and as a result, the impugned order is set aside and the appeal is allowed with consequential benefits to the appellants as per law. Ordered accordingly.
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2000 (5) TMI 723 - CEGAT, KOLKATA
... ...
... ... ..... s the misdeclaration, the appellants have submitted that the Chinese brand-name ndash TOWA ndash was also embossed on the Bobbin Cases and to this effect, a fax message from the supplier of the goods was received indicating that the brand-name ldquo Japan rdquo was inadvertently stenciled on top of the ldquo TOWA rdquo monogram instead of the brand-name ndash lsquo TOWA rsquo . But the invoice-value remained the same. However, we find that whatever the case may be, the invoice for 5,000 items and that too, relating to the period of one year prior to the actual import, cannot be called to be a contemporaneous import in respect of 50,000 pieces imported by the appellants. The Commissioner has also not placed any evidence on record to reject the transacted value. As such, we do not find any justification for enhancing the assessable value or for confiscating the goods. Accordingly, we set aside the impugned order and allow the appeal with consequential reliefs to the appellants.
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2000 (5) TMI 718 - CEGAT, KOLKATA
Demand - Limitation ... ... ... ... ..... in the manufacture of other items. 4. emsp After hearing both the sides we find that the appellants have a good case on limitation. In view of what has been stated by Shri Mohanty and the orders passed by the Asstt. Commissioner in their own case modifying the already approved classification lists prospectively w.e.f. the date of the show cause notice and the other order passed by the Asstt. Commissioner in respect of the other unit are sufficient to prove that the appellants were clearing the goods under approved classification list and there was material enough for them to entertain this belief that the end cuttings and side cuttings are classifiable as waste and scrap. Accordingly we feel that the demand raised in November, 1992 for the period April 1988 to February 1992 is barred by limitation of six months. We hold accordingly and allow the appeal with consequential relief to the appellants without expressing our opinion on the classification of the product in question.
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2000 (5) TMI 715 - CEGAT, KOLKATA
Appeal to Commissioner - Limitation ... ... ... ... ..... ent of India for issuance of 11C Notification, which request was ultimately declined. Thereafter, the appeal was filed before the Commissioner. He makes a reference to a number of decisions wherein the plea taken by the appellants pursuing the remedy under a wrong Court, has been held as not to be taken into account. However, he has fairly admitted that the appellants were not pursuing the remedy by way of filing of an appeal under a wrong Forum. They were, however, approaching the Government for the purposes of getting a relief, which cannot be considered as filing of an appeal under any wrong Court. As such, we do not find any infirmity in the view taken by the Commissioner (Appeals). The appeal is accordingly rejected.
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2000 (5) TMI 712 - CEGAT, KOLKATA
Appeal - Limitation ... ... ... ... ..... ituation the Hon rsquo ble Supreme Court has also observed that the appellant/ petitioner does not gain anything by delayed filing of the appeal and a lenient view was warranted in such situation. 2. emsp Countering the arguments Shri R.K. Roy, learned JDR submits that apart from the statement made by the learned Advocate there is nothing on record to substantiate the same. He draws our attention to the fact that the delay is to the tune of three months and seven days which is quite a long delay and should not be condoned. 3. emsp After considering the submissions and in view of the facts as explained by the learned Advocate we find that Shri M.A. Razack expired on 11-2-1999 and thereafter, appeal was filed on 13-4-1999 by his son Shri F.M. Razack, after obtaining the brief from the chamber of the late Advocate. In these circumstances, we are of the view that there was sufficient cause for delayed filing of appeal. As such we allow the Misc. Application and condone the delay.
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2000 (5) TMI 710 - CEGAT, MUMBAI
Modvat - Duty paying documents ... ... ... ... ..... e are more than two endorsements. The Tribunal in its decision in SBS Organics v. CCE - 1990 (45) E.L.T. 701 has held that there is no reason why, if credit could be permitted on two endorsements, it should be denied for a third or subsequent endorsement. Therefore the Collector (Appeals) s view that credit should not be denied solely on this ground does not require interference. 3. emsp I however, make it clear that the department is at liberty to pursue, if advised, any action against the respondent for any acts relating to any manipulation, which may be punishable under law. 4. emsp Appeal dismissed.
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2000 (5) TMI 708 - CEGAT, KOLKOTA
Furniture – Interpretation of statute ... ... ... ... ..... y seats falling under the said tariff heading. If the benefit of the notification is denied to the seats also by treating the same as parts of furniture, no items would be left in the said heading so as to be covered by the exemption granted under Notification 80/90. This situation would make the notification otiose. This is admitted position of law that an interpretation which renders the legislation futile and meaningless has to be avoided. As such we hold that the seats are not parts of plastic chairs as contended by the Revenue, but is furniture by itself entitled to the benefit of the notification. Our findings above also get further strengthened by the Board s circular referred by the ld. Advocate. The Revenue cannot be heard to argue against the same as laid down by the Hon rsquo ble Supreme Court in the case of Usha Martin Industries - 1997 (94) E.L.T. 460. As such in view of our foregoing discussions we reject the Revenue rsquo s appeal and uphold the impugned order.
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2000 (5) TMI 705 - CEGAT, MUMBAI
Modvat - Duty paying document ... ... ... ... ..... ration giving factory address of appellant, where the inputs are received and used, to avail Modvat credit. The grounds of appeal before Commissioner (Appeals) regarding the compliance of circular dated 29-2-1996 i.e. Bill of Entry is in the name of Registered Office/Head Office of appellant, but the credit to be availed at factory is clearly answered in the document itself showing three addresses of appellant both of office and factory and declaration of appellant to that effect in reverse, which is accepted by Assistant Collector of Customs. It is apparent that Commissioner (Appeals) has not at all examined this document in detail as to contents. So the contention of appellant that Modvat credit cannot be denied is proper and correct. So under these circumstances, the point raised is answered in the affirmative. Hence I pass the following order. ORDER For the reasons discussed above, impugned order is set aside. Appeal is allowed, with consequential relief according to law.
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2000 (5) TMI 703 - CEGAT, MUMBAI
Yarn - Exemption - Factories vis-a-vis manufacturer ... ... ... ... ..... a factory having facilities for producing yarn. The Commissioner himself does not deny that these two were separate factories within the meaning of Section 2(f) of the Act. There is absolutely no ground for denying the exemption. 5. emsp This is in fact the ratio of the Tribunals rsquo decision in CCE v. Broach Textile Mills Ltd. - 1998 (79) ECR 411. The Tribunal has made a distinction between a manufacturer and a factory and held that applicability affirmed by the cover of Notification 35/95, which grants exemption to doubling of yarn which is the predecessor to the notification that are under consideration of us, to a factory not by a company which have another factory for manufacture of yarn. 6. emsp Accordingly the appeal of the assessee is therefore to be allowed. Consequently the appeal filed by Ashish P. Kinariwala, its director against the penalty imposed on him under Rule 209A also will have to be allowed. 7. emsp The appeals are allowed and impugned order set aside.
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2000 (5) TMI 702 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit - Appeal ... ... ... ... ..... y cast upon him to consider and dispose of the stay application on merits. We are not aware of any law which shows that the Commissioner (Appeals) (or any other quasi-judicial authority) has to dispose of the application before it in a routine fashion, as the Commissioner (Appeals) done in this case. Further, on the facts of the matter as have been explained before us, we find a prima facie case for waiving deposit in excess of what has been paid. The demand for duty on the ground that the goods were cleared at values less than those mentioned in the price declaration is prima facie limited only to those clearances where such a declaration is required. Therefore, no deposit in excess of what could be payable on such clearances, in our view, requires. Accordingly, we take up the appeal itself, allow it by setting aside the order of the Commissioner (Appeals) with the direction that the Commissioner (Appeals) shall now hear and dispose of the appeal without any further deposit.
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2000 (5) TMI 701 - CEGAT, CHENNAI
Refund - Limitation ... ... ... ... ..... High Court has not given ruling to the effect that the limitation under Section 11B would not be applicable, but has merely stated that Revenue authorities were free to make return of the excess amount in their administrative capacity. In this case, the Revenue authorities did not choose to make such return in their administrative capacity and instead the Revenue seeks enforcement of the six months time limit under Section 11B. Therefore, the said judgment of the Calcutta High Court does not help the case of the respondents. 6. emsp I also find that normally the Tribunal is not resorting to the proviso to Section 35B suo motu and reject the appeal when the amount involved is less than Rs. 50,000/-. Therefore, in this case also the said view is required to be taken particularly because there has been some miscarriage of justice in the impugned order and the Revenue cannot be made to suffer on this account. Hence the Revenue appeal is allowed and the order in appeal set aside.
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2000 (5) TMI 700 - CEGAT, NEW DELHI
Appeal/Review - Limitation ... ... ... ... ..... in subsequent decisions by this Tribunal, we proceed to decide the appeal itself with the consent of both sides after waiving pre-deposit of duty. 4. emsp Heard the rival submissions. In the instant case, we note that the order-in-original was passed by the Asstt. Commissioner on 31-3-1997 dropping the proceeding against the assessee (appellants in this case). This order was reviewed by the Commissioner on 7-4-1998 in terms of Section 35E reviewing authority is competent to review the order within one year from the date of passing the order by the lower authorities. In the instant case, we find that the order has been reviewed by the Commissioner after expiry of period provided under Section 35E(3). Thus, we find that the order of review is hit by limitation and appeal filed in pursuance of this order is not maintainable. In this view of the matter, the appeal of the assessee is allowed. Consequential relief, if any, shall be admissible in accordance with law to the assessee.
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2000 (5) TMI 698 - CEGAT, CALCUTTA
... ...
... ... ..... appellants rsquo submissions with regard to the main appeal carefully. In this case, the R.D. has raised demand for duty on RT-12 for November and December, 1991 prior to approval of the relevant classification list filed by the appellants. Further, no Show Cause Notice was issued before demand. On the face of it, the demand is not tenable as the Classification List has not been approved by the Asstt. Collector till the date of demand. There is also a violation of principles of natural justice as no opportunity for representation was provided prior to the demand. Hence, the demand is set aside and the appeal is allowed. rdquo As admittedly, as the time of raising of the demand on RT-12 returns, Classification List was not approved and the assessments were provisional, for which a show cause notice had subsequently been issued to the appellants, we do not find any infirmity in the view taken by the Commissioner (Appeals). Accordingly, we reject the appeal filed by the Revenue.
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2000 (5) TMI 697 - CEGAT, KOLKATA
Modvat - Reversal of credit - Demand - Penalty ... ... ... ... ..... d to Modvat credit on inputs which go into exempted final products and the credit taken on such inputs is required to be reversed. The Department should have given out a complete working of the amount of Rs. 3,80,513/- and the details as how the same has been arrived at. I find that as pointed out by the learned Advocate, the quantum of Rs. 2,99,740/- reversed by him as per his calculation, is not sufficient and adequate to cover ineligible credits, therefore, the reversal is required to be referred to the satisfaction of the jurisdictional Asstt. Commissioner for which purpose the matter is required to be remanded back. Since the amounts have been reversed as per the knowledge and understanding of the appellants, I do not find this case to be a fit case for imposition of penalties. Penalties are set aside in full. The appeal is allowed by remand to the jurisdictional Asstt. Commissioner to redetermine the amount involved which is required to be reversed. Ordered accordingly.
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2000 (5) TMI 696 - CEGAT, NEW DELHI
Confiscation of goods ... ... ... ... ..... 14A is not sustainable in law. 7. emsp Since penalty has been held to be not sustainable in law, therefore, the question of charging of interest on this amount did not arise. 8. emsp Insofar as confiscation of the goods is concerned, we note that though the machine is not the property of Haryana Agricultural University, however the fact remains that it is being used at the extension centre of the University for the purpose of research and since it is being used for the purpose of research, therefore, we set aside the order of confiscation. 9. emsp Penalty has also been imposed on M/s. Jind Co-op. Sugar Mills. M/s. Jind Co-op. Sugar Mills has only provided space for installation of the imported goods. Admittedly these goods are being used for research purposes under the supervision and guidance of Haryana Agricultural University. In the circumstances, we hold that Penalty was not imposable on M/s. Jind Co-op. Sugar Mills. 10. emsp In view of the above, the appeals are allowed.
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