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Case Laws
Showing 181 to 200 of 623 Records
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2007 (1) TMI 470 - CESTAT, AHMEDABAD
Interest - Delay in refund of pre-deposit ... ... ... ... ..... rt has upheld the decision of the Tribunal in sanctioning interest on the delayed return of the deposit. He seeks relief in terms of Rule 41 of the CEGAT (Procedure) Rules. 5. emsp The learned Advocate is not in a position to specifically quote the section of the Central Excise Act or Rules making it eligible to grant interest for the pre-deposit amount. Rule 41 of the CEGAT (Procedure) Rules is reproduced below ldquo 41. emsp Orders and directions in certain cases. - The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect or in relation to its orders or to prevent abuse of its process or to secure the ends of justice. rdquo 6. emsp I find that the deposit in this case has been made earlier to bringing the provisions relating to interest on refunds. No sufficient grounds have been adduced to invoke the provisions of Rule 41 and grant relief in this matter. 7. emsp The appeal is dismissed. (Pronounced and Dictated in the Court)
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2007 (1) TMI 469 - CESTAT, AHMEDABAD
Demand - Limitation ... ... ... ... ..... d the show cause notice under the proviso to Section 11A by revoking the extended period of limitation. The appellants availed the benefit under the policy issued by the Ministry of Food and Civil Supplies which was issued in 1983. Subsequently, that policy was amended on 31-1-89. It is admitted fact that as per amended policy the appellants were not entitled for the benefit claimed by them. In respect of time-bar aspect I find that the amended policy was communicated to all the sugar factories. Therefore, the appellants were well aware of the amendment. As the appellants were claiming the benefit of policy issued by the Ministry of Food and Civil Supplies which was subsequently amended and it is within the knowledge of the appellants that the policy was amended and as per the amendment they were not entitled for the benefit. Therefore, I do not find any merit in the contentions raised by appellant. Accordingly, appeal is dismissed. (Dictated and pronounced in the Open Court)
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2007 (1) TMI 468 - CESTAT, MUMBAI
Refund - Unjust enrichment - Burden of proof ... ... ... ... ..... the product has not been passed on to their buyers. The appellants pray that another opportunity be extended to them to produce further evidence on this aspect. We accept the prayer and remand the issue as to whether the duty burden on the product has been passed on to the assessees rsquo buyers or not, to the adjudicating authority for fresh decision after extending a reasonable opportunity to the appellants of being heard in their defence and producing such evidence as they deem necessary to substantiate their case. 8. emsp As regards the claim for interest on delayed refund, we see merit in the assessees contention that they are eligible to interest after the expiry of 3 months from the filing of their claims for refund viz. April, 1996 in the light of the statutory provisions. Interest is payable from July, 1996 on the amounts of Rs. 17,45,42,335/-, Rs. 23,88,558/- and Rs. 72,98,720/-. 9. emsp The appeal is disposed of in the above terms. (Pronounced in Court on 8-1-2007)
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2007 (1) TMI 467 - CESTAT, NEW DELHI
Adjudication - Remand - Principles of natural justice - Violation of ... ... ... ... ..... re us with a plethora of decision of the Hon rsquo ble Courts of Law, claimed to be supporting their respective stand. We therefore, direct the adjudicating authority to give fresh hearing and finalise the matter in accordance with law preferably within eight weeks from the date of receipt of this order by the adjudicating authority. 5. emsp The appeal is allowed by way of remand. 6. emsp Assent per M.V. Ravindran, Member (J) . - I entirely agree with the view of my learned brother of remanding the matter back to the adjudicating authority for reconsidering the issue. At the same time, I would also like to make a note that the appellate authority having considered and admitted that there is violation of principles of natural justice, himself should have sent the matter back to the lower authorities instead of deciding the matter on merits. This is a settled law. The appeal is allowed by way of remand in the above terms. (Dictated and pronounced in the open court on 16-1-2007)
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2007 (1) TMI 466 - CESTAT, KOLKATA
Stay order - Modification of ... ... ... ... ..... an clearly be said at this stage that whenever there is legal controversy, there should be stay of operation of an impugned order. All the aspects of the case when examined in the light of the case decided by Supreme Court on 23-11-2006 in the case of Benara Valves Ltd. v. Commissioner of Central Excise reported in 2006 (204) E.L.T. (513) (S.C.) it appears that modification of the order dated 22-12-2006 would prevent public mischief and would not shake citizens faith in the impartiality of public administration. Accordingly, it is ordered that the order dated 22-12-2006 may remain inoperative as an interim measure and expeditious disposal of the appeal may be taken up. It would be proper for both the sides to make themselves ready with all documents for expeditious disposal of the matter on 6-3-2007. It is made abundantly clear to both the sides that at their own interest they should ensure that the matter is expeditiously disposed. (Dictated and pronounced in the open court)
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2007 (1) TMI 465 - CESTAT, KOLKATA
... ...
... ... ..... Application filed at a later date should not prejudice the other side (ii) If the Amendment Application does not go to the root of the matter which touches the right of the parties, that should not be considered (iii) Any Amendment Application should only be on bona fide discovery of the fact and not as a routine manner to put the other side in hardship. Such trite law cannot be ignored while entertaining an application styled as Application for Rectification of defects, which is in the guise of Amendment Application. Therefore, the Miscellaneous Application without the said reasons disclosed does not merit any consideration, but only calls for dismissal at this stage. If the Revenue is affected they are not prevented to file appropriate application for amendment of any of the part of the Appeal Memo or in its Prayer, which should relate back to the root of the matter. Accordingly, the Miscellaneous Application filed by the Revenue is dismissed. (Pronounced in the open court)
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2007 (1) TMI 464 - CESTAT, BANGALORE
Rectification of mistake - Applicability of ... ... ... ... ..... ected the Tribunal to hear the appeal on merits, on appellants producing proof of deposit. There was no need for the appellants to file a Miscellaneous Application for restoration as contended in the ROM application by the Commissioner. They have complied with the High Court rsquo s directions by depositing the amounts and intimating the same to the Registry of the Chennai Bench immediately on 22-12-1999. The Assistant Registrar of Chennai Bench ought to have taken this compliance and should have listed the appeal for final hearing. Failure on the part of the Registry cannot be a cause for rectification of mistake, which does not exist. There is no mistake committed by the Bench in restoring the appeal by Miscellaneous Order No. 240/2006 dated 27-2-2006 requiring its rectification. There is no merit in this ROM and the same is rejected. Appeal to come up for final hearing on 1st February 2007. Registry to issue this order expeditiously. (Pronounced and dictated in open Court)
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2007 (1) TMI 463 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... t amount of Rs. 82,67/-. On perusal of Sec. 35F, it is revealed that the said provisions covers the duty and penalty amounts alone, but not the interest amount. Therefore, stay application is dismissed herewith. Appellants shall deposit 50 of the amount under demand within a period of 2 weeks and report compliance by 9-2-2007. (Pronounced in Court)
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2007 (1) TMI 462 - CESTAT, CHENNAI
Polypropylene (PP) tapes - SSI Exemption - Notification No. 221/86-C.E. ... ... ... ... ..... in view of the Madhya Pradesh High Court rsquo s decision should also have been referred to the original authority by the Commissioner (Appeals). 5. emsp In the result, we allow the appeal by way of remand directing the original authority to consider, in the first instance , the assessee rsquo s claim for exemption under Notification No. 221/86-C.E. in respect of PP tapes manufactured by them and captively consumed in the manufacture of PP sacks during the period of dispute. This claim of the assessee shall be considered in the light of the Board rsquo s Order No. 8/92 dated 24-9-1992. It shall be only in the event of a reasoned decision being given against the assessee on this question that the authority shall follow the remand order of the Commissioner (Appeals). It goes without saying that, before passing order, the original authority shall give the assessee a reasonable opportunity of being heard on the issue presently under remand. (Dictated and pronounced in open Court)
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2007 (1) TMI 461 - ITAT MUMBAI
Deductions - Profits and gains from industrial undertakings other than infrastructure development undertakings
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2007 (1) TMI 460 - CESTAT, MUMBAI
Cenvat/Modvat - furnace oil used as Fuel for generation of electricity - manufacture of final product - Inputs sent outside for job work - provision of Rule 4(5) of the Cenvat Credit Rules, 2002 - HELD THAT:- Since tanks are earmarked for exclusive use of M/s. IRTL, they belong to them and accordingly receipt in the tanks of IRTL will amount of receipt by M/s. IRTL. There is no evidence from revenue that no payment was being made for hiring tanks by M/s. IRTL. In that view of the matter it can be considered that the inputs were received by M/s IRTL only. We further find that the CBEC vide its Circular No. 637/28/02 has clarified that the Cenvat credit is admissible only when inputs or capital goods are used by the manufacture within the factory premises (except when inputs or capital goods are used/sent for job work outside factory). Since in this case the inputs have been sent outside for job work, the present case is squarely covered by this clarification and therefore the furnace oil satisfy the definition inputs under Rule 2(g).
Further furnace oil used as fuel is covered by the main definition of inputs under Rule 2(g) which says ‘inputs means all goods except high speed diesel oil used in or in relation to the manufacture of final product whether directly or indirectly or whether contained in the final product or not ’ The rule does not say ‘inputs means all goods except goods used as fuel’ and therefore no exception can be made in respect of fuel as long as it has been used in or in relation to the manufacture of final products.
In view of the same, we hold that the appellants have correctly availed of the credit and accordingly the Commissioner’s order is set aside. Appeal is allowed.
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2007 (1) TMI 459 - CESTAT, MUMBAI
Production capacity based duty ... ... ... ... ..... ate authority, vide his impugned order held that inasmuch as, the assessee had not challenged the order of fixation of ACP, they cannot claim the benefit of exclusion of gallery length. Accordingly, he confirms the duty liability by setting aside the order. Hence the present appeal. 3. emsp Our attention has been drawn to the Hon rsquo ble Mumbai High Court decision in the case of Om Textile Pvt. Ltd. laying down that non filing of an appeal against the order of fixation of Annual Capacity cannot result in denial of substantive benefit of the law declared by the Hon rsquo ble Supreme Court. As such, in the ratio of the law so declared by the Hon rsquo ble High Court, Commissioner (Appeals) objection of not filing an appeal against the order of ACP fixation cannot act fettle to the assessees case. We, accordingly, set aside the impugned order and remand the matter to Commissioner (Appeals) for decision on merits. The appeal is thus allowed in above terms. (Pronounced in Court)
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2007 (1) TMI 458 - CESTAT, AHMEDABAD
Refund - Limitation - Assessment whether provisional ... ... ... ... ..... own at the time of clearance of the goods. This fact is noticed by the Commissioner (Appeals) in the impugned order. When an assessee made a request to keep their assessments provisional, the Revenue is duty bound to pass an order accepting the request or rejecting the request. 5. emsp In the present case, as no order has been passed on the request to keep the assessments provisional, therefore, their refund claims cannot be rejected on this ground. The claims of the appellant is liable for consideration by treating the assessments as provisional as the appellants made a request in pursuance to the Board Circular dated 30-6-2000 and the claims of appellant is to be considered, on merits, by the adjudicating authority. The impugned order is set aside and the matter is remanded to the adjudicating authority to decide the claim of the appellant afresh as indicated above. The appeals are disposed of by way of remand. (Order dictated and pronounced in the open Court on 18-1-2007).
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2007 (1) TMI 457 - CESTAT, MUMBAI
Cenvat/Modvat - Deemed credit - Penalty - Interpretation of Notification ... ... ... ... ..... that the cotton was not classifiable under Chapter 52 and the notification granted exemption to textile fabrics, impregnated, coated, covered with plastics falling under Tariff sub-heading 5903.19 from payment of duty in excess of Rs. 7 per square metre plus the duty for the time being leviable on the base fabric under Chapter 52. As per the provisions of Notification 63/87-C.E. exemption was available to specified finished goods while in the present case, Notification 35/03 specifies the inputs as well as the finished goods in which specified inputs are contained. 4. emsp In the light of the above discussion, I hold that the respondents are not eligible to credit in excess of Rs. 31,501 and are liable to pay the excess credit of Rs. 96,306. However, since the issue relates to interpretation of notification, no penal action is called for against the respondents and I accordingly hold that they are not liable to any penalty. 5. emsp The appeal is thus partly allowed as above.
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2007 (1) TMI 456 - CESTAT, CHENNAI
Penalty on CHA - Misdeclaration of goods ... ... ... ... ..... ised under Section 114A of the Customs Act. 5. emsp As rightly pointed out by learned Counsel for the CHA, they had entertained a genuine doubt regarding the eligibility of the capacitors for the benefit of Notification No. 20/99-Cus. ibid as found by Commissioner himself. The impugned order also indicates that the CHA had shared this doubt with the importers viz. M/s. DLWT. Having regard to such findings, we observe that it was not open to the Commissioner to hold the CHA liable under Section 112 of the Customs Act. This provision of law would be applicable only where the person sought to be penalised thereunder is found to have, by his omissions or commissions, rendered any imported goods liable for confiscation under Section 111 of the Act. There is no finding to this effect in the impugned order against the CHA. In the result, the CHA rsquo s appeal (C/117/2000) is allowed. 6. emsp The impugned order will stand modified accordingly. (Dictated and pronounced in open Court)
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2007 (1) TMI 455 - CESTAT, CHENNAI
Cenvat/Modvat - Capital goods - Demand and penalty ... ... ... ... ..... issue is held in favour of the appellants and the demand of Rs. 3,78,10,848/- is set aside. The appellants, however, will be liable to reverse, in their Cenvat Account, to the satisfaction of the Commissioner, whatever credit remains to be reversed in respect of inputs used in the manufacture of exempted final products during the period of dispute. For this limited purpose, they may be given a reasonable opportunity of adducing evidence and being heard. 6. emsp Having vacated the major demand raised in the impugned order against the appellants, and having regard to the fact that the dispute between the appellants and the department in relation to Cenvat credit on capital goods was predominantly in the nature of interpretation of provisions of the CCR 2002, we are of the view that there shall be no penalty on the party and, accordingly, the penalties are set aside. 7. emsp The appeal stands partly allowed. (Operative part of the order was pronounced in open Court on 10-1-2007)
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2007 (1) TMI 454 - CESTAT, NEW DELHI
Refund - Limitation ... ... ... ... ..... on of the Tribunal decision in the case of Maihar Cement (supra) - rdquo I find that in this case the duty was paid by the appellants consequent to issue of show cause notice by the department. Subsequently, the show cause notice was decided in their favour by the Commissioner and they filed the refund claim. Since they were contesting the show cause notice, therefore, the time limit prescribed under Section 11B is not applicable till the decision of the Commissioner as they are contesting the issue. Therefore, the deposit of the amount will be deemed to be under protest. Therefore, rejection of the appeal on the time bar issue is not correct. The order of the lower authorities is accordingly set aside and the appeal is allowed. Ordered accordingly. rdquo 5. emsp In the light of the above decision and after considering the facts and circumstances of the case, I set aside the impugned order and allow the appeal with consequential relief. (Dictated and pronounced in open Court)
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2007 (1) TMI 453 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Cenvat/Modvat - Capital goods ... ... ... ... ..... estic Auto Ltd. v. CCE, Ghaziabad - 2004 (173) E.L.T. 145 (Tri.- Del.), wherein, where the factory of the manufacturer, containing capital goods installed therein, was given on lease to another person, the capital goods, on which Modvat credit had been availed by the manufacturer, were held to have been removed by the said manufacturer on the date of lease. 4. emsp Apparently, there is a conflict of views between two coordinate Division Benches of this Tribunal on an issue which is pertinent to the instant case. However, sitting single, I am unable to make any reference to Larger Bench. This has to be done by Division Bench. 5. emsp Learned counsel has cited two decisions in his favour. Learned SDR has cited one decision against the appellants. Taking the weightage of decisions cited by learned Counsel, I am inclined to grant waiver of pre-deposit and stay of recovery. It is ordered accordingly. The appeal is referred to Division Bench. (Dictated and pronounced in open Court)
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2007 (1) TMI 452 - CESTAT, MUMBAI
Cenvat/Modvat - Manufacture ... ... ... ... ..... inks Ltd. - 2004 (178) E.L.T. 167 (Tri.-Del.) and Stumpp Scheule and Somappa Ltd. and Anr. v. CCE, Bangalore-I - 2005 (191) E.L.T. 1085 (T) 2005 (69) RLT 786 (CESTAT-Ban.). 3. emsp On the other hand, ld. SDR contends that merely because duty was paid on certain products credit of the duty paid cannot be held to be admissible for the reason that credit can be availed only on inputs used in or in relation to manufacture of final product, and in this case since the process is not one of manufacture, Modvat credit cannot be extended to the appellants. In other words, his submission is that the end does not justify the means. 4. emsp We have carefully considered the rival submissions and perused the case laws relied upon by them and find force in their submission that credit would be admissible to them since duty has admittedly been paid on the final product. Following the ratio of above judgments, we set aside denial of credit and penalty and allow the appeal. (Dictated in Court)
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2007 (1) TMI 451 - CESTAT, BANGALORE
Valuation - Issuance charges ... ... ... ... ..... wing the appeal. 5. emsp On a careful consideration, we agree with the learned Counsel that the Order-in-Original was justified in dropping the demands, as the assessments had been completed for the pricelist filed for clearance at factory gate. The transit insurance pertains to clearances from factory to various depots and the same was not required to be added in the assessable value as held in the cited judgments. The order of the Original Authority is a correct one and the Commissioner (Appeals) proceeding on the ground that the ownership has not changed and it is still held by the assessee is not a sound ground. The transfer of property by sale is not the criteria for the purpose of levy of excise duty. Therefore, the distinction made by the Commissioner through all the judgments of the Apex Court is not correct in law. As the issue is covered, therefore, the stay application and appeal are allowed with consequential relief, if any. (Pronounced and dictated in open Court)
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