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Case Laws
Showing 181 to 200 of 772 Records
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2005 (2) TMI 732 - CESTAT, BANGALORE
... ...
... ... ..... of India and the European Union. 2.We have heard both sides. 3.We note that the bills of entry under which the plant and machinery for food processing factory were imported, were initially assessed provisionally and then finally assessed by the Assistant Commissioner on 25-2-1999 and at that time there was no request from the importers to assess the goods extending the benefit of exemption under Notification 148/94 as amended. The order of finalisation of assessment has not been challenged by way of appeal. Therefore, it is not open to the importers to seek refund in the light of the Apex Court rsquo s decision in Flock India Ltd. v. CCE - 2000 (120) E.L.T. 285 (S.C.) followed by the Tribunal in the case of Super Cassettes Industries Ltd. v. CC - 2003 (162) E.L.T. 1148. Following the ratio of the Apex Court rsquo s decision cited supra, we hold that the importers are not entitled to refund, uphold the impugned order and reject the appeal. (Operative part pronounced in Court)
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2005 (2) TMI 731 - CESTAT, BANGALORE
Stay/Dispensation of pre-deposit - Demand ... ... ... ... ..... whom the contract was awarded but a Sub-contractor of the above said company and therefore is not eligible for the benefit of the said Notification. 3.Heard both sides. 4.It is apparent from the records of the case that the present applicant is a Sub-contractor of a joint venture company (M/s Tantia-Techni Bharti Ltd.) to whom the contract was awarded by NHAI. The Notification above cited exempts goods when imported into India by a contractor to whom work was allotted by NHAI. The benefit of exemption is sought to be denied only because the import was made by a Sub-contractor of the joint venture company. The Department appears to have taken a very narrow view of the matter while denying the benefit of Notification No. 17/2001. The applicant made a strong prima facie case in his favour. We accordingly waive pre-deposit of duty and stay recovery thereof during the pendency of the appeal. (Operative portion of the order has been pronounced in the Court in completion of hearing)
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2005 (2) TMI 730 - CESTAT, CHENNAI
Cenvat/Modvat - Branded goods ... ... ... ... ..... ould be no violation of Modvat Rules and the credit has been incorrectly denied. emsp 2.The inputs in question had been declared by the appellant, when he was paying duty prior to the High Court rsquo s order. During pendency of the order itself, the appellant decided to pay duty on the branded goods and took Modvat credit on the inputs and the payment of duty was actually done. In the circumstances, there is no irregular availment of Modvat credit. The appeal is allowed with consequential relief, if any, to the appellant. (Dictated and pronounced in open Court)
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2005 (2) TMI 729 - CESTAT, BANGALORE
... ...
... ... ..... and, therefore, the price circulars clearly establish the arrangement for return of durable containers to them. emsp 2.We have heard both sides. emsp 3.We find that there is no ground in the appeal memorandum that the earlier pattern which was accepted by the department in 1993 and 1995 was changed in any manner or that their arrangement between them and the distributors no longer existed. Therefore, what held good in 1993 and 1995 should hold good for the present period also. The Commissioner (Appeals) has accepted the contention that the containers are durable and returnable. There is nothing on record to dislodge such a finding, this being the factual position, in law, cost of durable and returnable containers are not required to be included in the assessable value of the final products packed in these containers. We, therefore, see no reason to interfere with the order of the Commissioner (Appeals) and accordingly uphold the same and reject the appeal. (Dictated in Court)
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2005 (2) TMI 728 - CESTAT, MUMBAI
Adjudication - Jurisdiction - Seizure ... ... ... ... ..... ct where and how the misdeclaration was arrived at. Furthermore, there is no material on record that the goods seized at Mumbai were clandestinely cleared from Kolkata Port. Though the decision of the Tribunal in Ramnath Jayant seeks to distinguish the ratio held in Ram Narain Bishwanath along with other cases adhering to the factum of lsquo cause of action rsquo , which is the basis for the civil court rsquo s jurisdiction and such a phrase is unknown to the Customs Act. In any case, there is no material that the goods under seizure were misdeclared at Kolkata Port. Therefore, in our considered view, the Commissioner of Customs (Appeals), has rightly referred the matter to the authorities at Kolkata on the point of jurisdiction while releasing the seized goods and the said finding do not warrant any interference by this Tribunal. We confirm the same. Consequently, we find no merits in the appeal filed by the Revenue. Accordingly the appeal is dismissed. (Pronounced in Court)
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2005 (2) TMI 727 - CESTAT, MUMBAI
Demand - Limitation ... ... ... ... ..... e item Relays under Chapter 8536.90 and require the assessee to give reasons as to why the classification should not be changed? emsp 7.In view of the decision in the case of M/s. Toshniwal Instruments (India) Ltd. v. CCE, Pune, reported in 1999 (109) E.L.T. 464 (Tribunal) and in the case of M/s. Studds Ltd. v. CCE, Delhi-II, reported in 2002 (140) E.L.T. 511 (Tri.-Del.), it is to be held that the demand is time-barred. 8.In the aforesaid decision, it is observed that the time-limit for demanding duty is thus to be computed from 14-9-90 when the corrigendum (new Show Cause Notice) was issued. As the date is beyond the period of six months specified in Section 11A(1) of the Act, the entire demand is time-barred. We, accordingly, set aside the demand of the Central Excise duty. 9.The duty confirmed by the proposed classification under Chapter Heading 85.36.90 is barred by limitation. In the result, the appeal filed by the assessee is allowed on limitation. (Pronounced in Court)
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2005 (2) TMI 726 - CESTAT, KOLKATA
Stay/Dispensation of pre-deposit ... ... ... ... ..... The issue involved is whether the appellants are entitled to get the benefit of exemption Notification No. 108/95-CE as amended for supplying excisable goods to a joint venture project financed by the Japan Bank of International Co-operation (JBIC). This is a fact that the Japan Bank of International Co-operation (JBIC) is not an international organisation. The certificate countersigned by the Principal Secretary of the State Govt. cannot alter the fact of their ineligibility for the exemption on the ground that JBIC is not an international organisation within the meaning of the term defined in the Notification referred. The appellant is not made out a case for total dispensation of duty and penalty. We direct the appellants to pay Rs. 7 lakhs within a period of 8 weeks from today. After depositing the above amount, the rest of the duty and penalty shall remain dispensed with. Case to come up for compliance and hearing on 27-4-2005. (Dictated and Pronounced in the open Court)
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2005 (2) TMI 725 - CESTAT, NEW DELHI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... ived were HR Sheets. But this ground, in our view has been rightly not accepted by the Commissioner (Appeals) for the simple reason that these HR Sheets were got cut from the HR Coils procured by the respondents under the duty paid invoices. There is no dispute regarding the duty paid character of the goods and utilization of the same by the respondents in the manufacture of final products. The cutting of HR Sheets out of the HR Coils did not amount manufacture of any new product. Both stood covered under one sub-heading of the Tariff, as observed by the Commissioner (Appeals) in the impugned order. emsp 3.In view of the above, we do not find any illegality in the impugned order vide which the Commissioner (Appeals) has allowed the Modvat credit to the respondents after reversing the order-in-original. The impugned order of the Commissioner (Appeals) is upheld. The appeal of the Revenue is dismissed. (Operative part of this order was pronounced in the open court on 17-2-2005)
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2005 (2) TMI 724 - CESTAT, CHENNAI
Appeal to Appellate Tribunal - Limitation ... ... ... ... ..... on of the inordinate delay. emsp 9.In the case of Kanishk Steel Industries (Supra) cited by ld. Counsel, there was a delay of 1550 days in the filing of an appeal by the assessee before the Tribunal against an ACP order. The Hon rsquo ble High Court condoned this delay after noting that the ACP order had been issued by the Assistant Commissioner and not by the Commissioner (competent authority) and that the party was waiting for a communication of determination of ACP from the Commissioner. Obviously, the delay was satisfactorily explained by M/s. Kanishk Steel Industries. Hence its condonation by the High Court. The instant case is factually different inasmuch as the order was passed by the competent authority and the party had only to act upon it. emsp 10.For the reasons noted above, we dismissed the application for condonation of delay of the captioned appeal for want of sufficient cause. Consequently, the appeal also gets dismissed. (Pronounced in open Court on 17-2-2005)
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2005 (2) TMI 723 - CESTAT, NEW DELHI
Remission of duty ... ... ... ... ..... remission of duty on 3100.20 qntls. of molasses lost in Steel Tank No. 1 for sugar season 2001-2002. rdquo 14 2.The contention of the learned Counsel is that there was no discrepancy between the State Excise records and the Central Excise records inasmuch as actual balance was NIL according to U.P. State Excise record also. It is also being pointed out that the loss in the present case at 1.81 is well within the norm of 2 is held to be condonable in the circular of the Board. The learned Counsel has pointed out that this issue remains settled by the decision of the Tribunal in the case of Shakumbari Sugar and Allied Inds. Ltd. v. CCE, Meerut - 2004 (171) E.L.T. 286 and other cases. The appellant rsquo s claim is covered by the decision of the Tribunal and the instructions of the Board. The fact of loss is also brought out by the Central and State Excise records. Appeal is allowed with consequential relief, if any, to the appellant. (Pronounced and dictated in the open Court)
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2005 (2) TMI 722 - CESTAT, CHENNAI
Cenvat/Modvat - Capital goods ... ... ... ... ..... e facts of the present case. Accordingly, it has to be held that it was not open to the Revenue to deny the benefit of Rule 57R(2) to the assessee on the ground that the intermediate product was not specified as final product under Rule 57Q during the material period inasmuch as the requirement of specification of intermediate product as final product under the proviso to Rule 57R(2) was not mandatory. The appellants can also claim support from the Tribunal rsquo s decision in the case of Sudarshanam Spinning Mills Ltd. (supra). wherein capital goods credit was allowed to the assessee by the Tribunal after rejecting the Revenue rsquo s contention that, as the intermediate product (carded/combed cotton) which was manufactured by using the capital goods was not specified as final product under Rule 57Q, Modvat credit on capital goods was not available to the assessee. emsp 5.Therefore, I set aside the impugned order and allow this appeal. (Dictated and pronounced in open Court)
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2005 (2) TMI 721 - CESTAT, MUMBAI
Demand - Job work - Valuation ... ... ... ... ..... commends acceptance and not the AR4 value as adjudged by the Commissioner. In the case of merchant exporter who diverted the goods into domestic market (after intimating the Department that he intends to do so) the ratio laid down by J.K. Papers which deals with the case of a manufacturer export, does not apply. The price at which the damaged goods were sold by the appellant is the only price available for the purpose of valuation. The Department does not allege that this price does not represent the real value of the damaged goods. The demand for differential duty on the made-up therefore is required to be set aside. 28.We also hold that the charge of diversion of export goods without following proper procedure does not sustain. No penalty can be imposed on any of the appellants. 29.Appeal No. 2394 to 2396, 2429 to 3431 and 2588 to 2590/02 are also disposed off in the above terms. 30.In fine all the appeals are allowed. The impugned orders of the Commissioner are set aside.
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2005 (2) TMI 720 - CESTAT, NEW DELHI
Demand - Clandestine removal ... ... ... ... ..... are used in the manufacture of televisions which are cleared without payment of duty. The appellants are maintaining a register regarding rejections of colour picture tubes. The registers show the rejection of the picture tubes. The revenue has also not produced any evidence to show that these picture tubes are used in the manufacture of televisions as the TVs requires many other parts also such as cabinet, PCB etc. As the appellants were maintaining separate record regarding rejection which were for the year 1998-99 is only 269 out of the total picture tubes received by the appellant and for the year 1999-2000 it is only 3169 and such rejections are mentioned in the record maintained by the appellant. In these circumstances, we find that demand on the ground that these picture tubes are used in the manufacture of televisions which are cleared on payment of duty and not sustainable. The impugned order is set aside and the appeal is allowed. (Order dictated in the open Court)
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2005 (2) TMI 719 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Signages - Dutiability of ... ... ... ... ..... in the light of the Board rsquo s order dated 15-1-2002, which laid down guidelines for dealing with the excisability issue. He should have also carefully examined the cited decisions of the Supreme Court on the issue. It is noticed that many of the decisions cited by the assessee were not carefully considered by the Commissioner, who chose to consider them as irrelevant, without much discussion. After examining the available evidence including the pictures of lsquo Signages rsquo produced by the appellants, and considering the process aforestated, we are of the view that the assessee rsquo s challenge against dutiability of the items prima facie is well-founded. Accordingly, we grant waiver of pre-deposit and stay of recovery in respect of the duty and penalty amounts. emsp 4.Early-hearing applications are also allowed in view of the high stake for the Revenue, involved in the case. Accordingly, the appeals are posted to 2-5-2005. (Dictated and pronounced in the open Court).
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2005 (2) TMI 718 - CESTAT, CHENNAI
Re-adjudication - Show cause notice - Amendment thereto - Natural justice ... ... ... ... ..... . MRPL, the other appellants should also have been put to notice of any fresh allegations raised against M/s. MRPL in the addendum. Even otherwise, any substantial amendment to a SCN is liable to be notified to all the noticees. Therefore, we must hold that the Commissioner denied natural justice to the other parties. emsp 9.The impugned order which is not in terms of the remand order cannot be sustained. The Commissioner has to re-adjudicate the case in conformity with the remand order. We, therefore, set aside the impugned order and allow all these appeals by way of remand. The Commissioner is directed to adjudicate the case afresh in terms of the remand order as clarified herein and in accordance with law after issuing the addendum to all co-noticees of MRPL and giving the parties a reasonable opportunity of being heard. He shall do so as early as possible, at any rate within a period of six months. (Operative portion of the order was pronounced in open Court on 11-2-2005)
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2005 (2) TMI 717 - CESTAT, BANGALORE
Stay/Dispensation of pre-deposit ... ... ... ... ..... per Kg. Therefore the demand has been correctly worked out and the appellants should pay the duty amount. emsp 3.The learned Counsel submits that the duty has been calculated on different terms and the calculation is beyond the terms of the show cause notice. emsp 4.On a careful consideration of the submissions made by both the sides, we notice that in terms of the show cause notice, the appellants have paid the duty. The Revenue rsquo s report has now taken a new turn and the duty has been calculated on different terms. The entire aspects have to be examined in detail and the same can be done at the final stage. At this stage the party has followed the terms of the show cause notice and therefore, we accept the contention of the appellants. The stay application is allowed by granting waiver of pre-deposit of disputed duty amount and staying its recovery till the disposal of the appeal. The matter to come up for hearing in its turn. (Pronounced and dictated in the open court)
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2005 (2) TMI 716 - CESTAT, KOLKATA
Stay/Dispensation of pre-deposit ... ... ... ... ..... peal) in page 6 and 7. He submits that the Commissioner (Appeal) has held that the appellant suppressed the fact, as such the extended period is invocable in the show cause notice. 3.After hearing both the sides, we find that in this case the appellant have submitted the RT-12 returns regularly to the Department and the lower adjudicating authority has held that mere inefficiency on the part of the assessing officers resulting inordinate delay in the checking of RT-12 returns filed by the assessee cannot by any stretch of imagination be considered as a reasonable ground for invoking extended period. He had also relied upon the Hon rsquo ble Supreme Court judgment in this regard. We find considerable force in the submissions of the Advocate for the Appellants. They have made prima facie case for total dispensation of duty and penalty as such we dispense with the duty and penalty in this case. Case to come up for hearing on 18-4-2005. (Dictated and Pronounced in the open Court)
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2005 (2) TMI 715 - CESTAT, CHENNAI
Customs House Agents - Licence - Suspension of - Natural justice ... ... ... ... ..... ned order. 4.After careful consideration of the submissions, we are convinced of the appellants (CHA) having been denied natural justice in this case inasmuch as, while the show-cause notice dated 12-9-2002 issued by the DRI to the CHA and others was taken on record by the Commissioner for adjudication of the subject show-cause notice (issued to the CHA for suspending/revoking their licence), the CHA rsquo s reply to the show-cause notice dated 12-9-2002 was not taken into account for the said purpose. For this sole reason, we have to set aside the impugned order, and we do so. The Commissioner is directed to pass a fresh order in adjudication of show cause notice dated 30-9-2002 after adjudication of the DRI rsquo s show-cause notice dated 12-9-1992. Needless to say, the CHA shall be given a reasonable opportunity of being heard in the remanded proceedings. 5.The appeal stands allowed by way of remand. (Operative portion of the order was pronounced in open court on 8-2-2005)
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2005 (2) TMI 714 - CESTAT, KOLKATA
Appeal - Limitation - Delay of 22 days in filing appeal - Condonation ... ... ... ... ..... e counsel but he could not prepare the appeal papers and another counsel was engaged. He prepared the memo of appeal and then the appeal was filed. Delay has been properly explained. In the case of Bhag Singh and Others v. Major Daljit Singh and Others referred to above, the Hon rsquo ble Supreme Court has held as under ldquo Condonation of delay - Sufficient cause - Scope of Section 5 of the Limitation Act, 1963 - While considering the application for condonation of delay under Section 5 of the Limitation Act, 1963, the Court should not take too strict and pedantic view but consider it from the point of view which will advance the cause of justice, AIR 1962 (Punjab) 1946 AIR 1956 All. 677 relied upon rdquo The appellants have explained the delay and, therefore, I condone the delay. After setting aside the impugned order, I remand the matter to the Commissioner (Appeals) for decision on merits in accordance with the law. SP also gets disposed of. Pronounced in the open Court.
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2005 (2) TMI 713 - CESTAT, MUMBAI
Manufacture - Dutiability ... ... ... ... ..... and in law, the activity is arrived at to be a manufacturer, once again of RMG from imported RMG by application of Chapter Note. 4.Since the basic issue of applicability of Chapter Note 4 and the quantification of consequent demands, which could be effected on the present appellants are to be redetermined, in the remand in de novo proceedings now being proposed, we would leave the issue of suppression of facts and imposition of penalties and other issues open for both sides to redetertmine in the de novo proceedings if demands if any are arrived at. 5.Keeping in view the findings hereinabove, we would set aside the order impugned and allow the appeals as remand for determining the duty, if any and other consequent penalty if any on the assessee. It is made clear that the demands, if any, on the goods manufactured, if so, by the job workers cannot be confirmed on the assessee pursuant to these proceedings. 6.Appeals disposed of in above terms. (Pronounced in Court on 4-2-2005)
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