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Showing 181 to 200 of 701 Records

• 2005 (3) TMI 649 - CESTAT, NEW DELHI
  

  Refund - Demurrage and detention charges

  
  
  ... ...
  ... ... ..... submissions of the learned S.D.R. that the Commissioner (Appeals) does not have jurisdiction to hear the appeal under Section 128 of the Customs Act against the Order of the Assistant Collector disallowing the reimbursement of demurrage and detention charges. Section 128 empowers any person aggrieved by any decision or order passed under the Customs Act by an officer of the Customs lower in rank than the Commissioner of Customs to file an appeal before the Commissioner (Appeals). The payment of demurrage and detention charges and their reimbursement by the Customs authorities does not fall within the purview of Customs Act and such an order passed by the Assistant Commissioner denying reimbursement of such charges cannot be appealed before the Commissioner (Appeals). Accordingly, the impugned order passed by the Commissioner (Appeals) is without jurisdiction and is set aside. The appeal of the Revenue is allowed. (Operative part of Order pronounced in open Court on 4-3-2005).

  ---

• 2005 (3) TMI 648 - CESTAT, BANGALORE
  
  ... ...
  ... ... ..... as depreciation value has not been correctly worked out. 4.The learned DR submits that the matter should go back to the Original Authority to consider this claim as there is no finding on this aspect. 5.On a careful consideration of the submissions made by both sides, I notice that the appellant rsquo s claim for depreciation on the DG Set which was auctioned is justifiable in terms of law. Therefore, the matter is remanded to the Original Authority to verify the calculation worked out by the appellants. After working out the depreciation value, the total duty is required to be worked out. Penalty and interest are also required to be reworked out on the duty amount due by the appellants. While confirm the amounts, the amount already reversed by the appellants should also be taken into account. The appellant should be allowed to make their submission to substantiate their claim during the adjudication proceedings. Order accordingly. (Pronounced and dictated in the open Court)

  ---

• 2005 (3) TMI 647 - CESTAT, NEW DELHI
  

  Production capacity based duty

  
  
  ... ...
  ... ... ..... cepted by the Tribunal and the order of the original authority based on these reports for increasing the ACP of the mills of the appellants was set rsquo aside. The impugned order therefore, could not be passed on the basis of same old reports which were earlier not accepted by the Tribunal and the order passed on their basis fixing the final ACP was quashed. In the absence of any evidence to the contrary, the parameters of the mills as declared by the appellants in declaration dated 10-9-1997 on the basis of which their ACP was provisionally fixed, was to be accepted for finalising the ACP, the duty demand accordingly, if any, outstanding against them, could be raised and not otherwise. 6.In view of the discussion made above, the impugned order of the adjudicating authority cannot be sustained against the appellants and is set aside. The appeal of the appellants is allowed with consequential relief as per law. (Operative part of the order pronounced in the Court on 4-3-2005)

  ---

• 2005 (3) TMI 646 - CESTAT, NEW DELHI
  

  Appeal - Limitation - Delay in filing - Condonation of

  
  
  ... ...
  ... ... ..... d of duty and imposition of penalty by the adjudicating authority. Once they have filed the appeals before the Commissioner (Appeals) and their factory got closed, it was their duty to intimate the address to the Commissioner (Appeals). In fact, the learned Advocate has also appeared before the Commissioner (Appeals) for the personal hearing before the appeal was decided. It appears that even at that time, the new address for correspondence purpose was not intimated to the Commissioner (Appeals). Further, the personal hearing was granted on 28-1-2004 and the order was passed on 6-2-2004. The applicants should have been careful as their appeals had been heard and the order was to be passed. We, therefore, find that the applicants have not satisfactorily explained the delay in filing the appeals. We, therefore, dismiss their applications for condonation of delay. Consequently, both the appeals are also dismissed. (Operative part of the order announced in open court on 3-3-2005)

  ---

• 2005 (3) TMI 645 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
  

  Settlement Commission - Review - Powers of Settlement Commission

  
  
  ... ...
  ... ... ..... st shall be calculated and communicated to the applicant by the Revenue under Rule 96ZO within 15 days from the date of receipt of this order, which the applicant should pay within the next 15 days from the date of receipt of interest communication and report compliance both to this Bench as well as to the Revenue. Accordingly, the Bench grants immunity from interest over and above 10 p.a. simple interest. (iii) The Bench extends immunity from penalty and prosecution also under the provisions of the Central Excise Act, 1944 in so far the present case is concerned 7.The settlement shall be void if it is subsequently found by the Settlement Commission that it has been obtained by fraud, or mis-representation of facts as observed in sub-section (9) of Section 32F of the Central Excise Act, 1944. The above immunities are granted under Section 32K(1) of the Central Excise Act, 1944. The attention of the applicant is also drawn to sub-sections (2) and (3) of Section 32K of the Act.

  ---

• 2005 (3) TMI 644 - CESTAT, CHENNAI
  

  Refund - Notification No. 12/99-Cus.

  
  
  ... ...
  ... ... ..... as liable to be refunded to them. We have perused the above Notification and we find that differential duty on the goods imported by the appellants has been waived by the Government under Section 28A of the Customs Act. Apparently, the appellants are eligible for the benefit of the Notification No. 12/99-Cus. (N.T.), dated 5-2-1999 inasmuch as their import was effected during the period 21-4-1989 to 31-1-1990 specified in the Notification. This Notification was issued after the impugned order was passed and none of the lower authorities had occasion to consider this Notification. In the circumstances, we set aside the orders of both the lower authorities and allow this appeal by way of remand, directing the original authority to take a fresh decision on the assessee rsquo s refund claim, after considering Notification No. 12/99-Cus. (N.T.), dated 5-2-1999 issued by the Central Government under Section 28A of the Customs Act, 1944. (Order dictated and pronounced in open Court)

  ---

• 2005 (3) TMI 643 - CESTAT, NEW DELHI
  
  ... ...
  ... ... ..... hi) and CCE v. S.P. Tobacco Pvt. Ltd. - 2005 (181) E.L.T. 136 (Tri.-Delhi). 5. emsp On careful consideration of the submissions made by both the sides, I find that in this case, the appellants had failed to debit the Cenvat credit taken on inputs used for manufacture of exempted goods, at the time of clearance of exempted goods. They also utilised this credit for clearance of dutiable goods. Thus, the intention to evade payment of duty is quite clear. Therefore, penalty is imposable on the appellants, M/s. Perfect Thread Mills Ltd. However, considering the fact that the appellants had deposited the disputed amount before issue of show cause notice, the penalty is reduced to Rs. 50,000/-. I find no ground for imposition of penalty on Surya Prakash Mehta, General Manager of M/s. Perfect Thread Mills Ltd. Therefore, the penalty imposed on Shri S.P. Mehta is set aside with consequential relief, if any. Ordered accordingly. Order dictated and pronounced in open Court on 28-3-2005.

  ---

• 2005 (3) TMI 642 - CESTAT, CHENNAI
  

  Demand - Limitation - Penalty

  
  
  ... ...
  ... ... ..... castings effected by the party during the period of dispute requires to be sustained. The plea of limitation raised by the appellants is also untenable inasmuch as suppression, by the appellants before the department, of the fact that they were manufacturing and clearing machined castings of iron (which were chargeable to duty) without payment of duty during the material period stands proved in this case. Our findings with regard to the appellants rsquo letter dated 20-2-1988 and their failure to produce copy of the classification list do have a bearing on this aspect. We, therefore, reject the plea of time-bar. 4. emsp Clearance of dutiable goods without payment of duty having been found against the party, a penalty under Rule 9(2) and Rule 173Q has to be sustained. The penalty of Rs. 3,000/- imposed by the lower authority is considered to be reasonable. 5. emsp In the result, the appeal is rejected. (Operative portion of the order was pronounced in open Court on 28-3-2005)

  ---

• 2005 (3) TMI 641 - CESTAT, NEW DELHI
  

  Cenvat/Modvat - Inputs

  
  
  ... ...
  ... ... ..... ndent covering each invoice/debit note under which the differential duty was paid so the procedural defect gets regularized. rdquo There is also no force in the findings of the Commissioner (Appeals) that the Modvat credit is not available as royalty/trade mark are not physically visible inputs and are also not declared inputs for the purpose of availing Modvat credit under Rule 57A. The duty has not been paid by the supplier of the inputs on Royalty/trademark usage fee. This charge has been included in the assessable value of the concentrate, which is an input for the Appellants, manufactured and supplied by M/s. Parle. Thus due to redetermination of the assessable value of the inputs, namely, concentrates, the more duty has been paid and in terms of the provisions of Rule 57E, the Appellants are eligible to avail of the Modvat credit of the duty, subsequently paid by their supplier. Accordingly, we set aside the impugned order and allow the Appeal. (Pronounced in the Court)

  ---

• 2005 (3) TMI 640 - CESTAT, NEW DELHI
  

  Cenvat/Modvat - Duty paying document

  
  
  ... ...
  ... ... ..... the CVD paid in pursuance to the assessment order. 5. emsp We find that only objection taken by the Revenue is that the TR-6 challans is not a valid duty paying document for availing the benefit of Modvat credit in respect of the imported capital goods. We find that on filing the Ex-bond Bill of Entry, a detailed assessment order was passed by the proper officer on 9-5-2001 demanding duty and interest. The respondent in pursuance to the assessment order paid the duty and got cleared the goods. In these circumstances, on the basis of duty in the assessment order, which is in respect of the Ex-bond Bill of Entry and duty, has been paid in pursuance to the adjudication order passed by the proper officer. The respondents are entitled for the credit as the assessment order is in respect of the Bill of Entry filed by the respondent. In these circumstances, we find no infirmity in the impugned order, the appeal is dismissed. (Dictated and pronounced in the open Court on 21-3-2005).

  ---

• 2005 (3) TMI 639 - CESTAT, NEW DELHI
  

  Demand - Show cause notice - Words and phrases

  
  
  ... ...
  ... ... ..... clearly shows that jurisdiction of a proper officer to initiate proceedings which has escaped collection is not traceable to Section 28. Further, the Supreme Court in Virgo Steels case has held that the law laid down by the Supreme Court in CC, Calcutta v. Tin Plate Co. of India Ltd. 1996 (87) E.L.T. 589 (S.C.) is that issue of a notice under Section 28 is a mandatory requirement of that Section with which the Supreme Court was in agreement. In view of this and decision of the Supreme Court in Madhumillan Syntex Pvt. Ltd. case, we hold that issue of a notice under Section 11A(1) of the Central Excise Act is a condition pre-requisite before any demand of duty etc. can be levied on an assessee. As in this case the show cause notice has been issued for the extended period of limitation by Additional Collector who was not authorized to do so, the show cause notice is without jurisdiction. Accordingly, we set aside the impugned order and allow the Appeal. (Pronounced in the Court)

  ---

• 2005 (3) TMI 638 - CESTAT, NEW DELHI
  

  Rectification of mistake

  
  
  ... ...
  ... ... ..... quo .....Even though CESTAT held that in respect of the additional charges extended period cannot be invoked, as the facts were known to the Department it appears that the said observation of the CESTAT would not be applicable in respect of the clandestine removals and duty is ought to be paid on such charges. rdquo 3. emsp The duty liability had been determined after hearing both sides. If the amount varies from the amount given in the show cause notice, that cannot be said to be a case of apparent error. The Para No. 4 of the ROM application points out that the amount confirmed is higher than the amount due. The Revenue cannot be aggrieved with it. Nor does the assessee. The learned Counsel, who is present for the assessee, points out that they have no grievance about the amount determined by the Tribunal. 4. emsp In view of the observations made above, the ROM application is not maintainable and the same is rejected. (Dictated and pronounced in the open court on 18-3-2005)

  ---

• 2005 (3) TMI 637 - CESTAT, MUMBAI
  

  Cenvat/Modvat - Deemed credit - Penalty - Overdrawal

  
  
  ... ...
  ... ... ..... s penalty. The Commissioner also confiscated land, building, plant etc. under sub-rule (2) of Rule 173Q of the Central Excise Rules and allowed them to be redeemed on payment of a fine of Rs. 1,00,000/-. Having regard to the circumstances, we reduce the fine to Rs. 25,000/-. 10. emsp In fine, the appeal is partly allowed on the following terms - (a) The appellant is entitled for Modvat credit of Rs. 28,83,432/-. (b) Demand for duty of Rs. 28,79,290/- is set aside. Penalty and interest on this account is also not sustainable and therefore set aside. (c) Duty confirmed for Rs. 1,116/- and Rs. 3,189/- is upheld. (d) Penalty of Rs. 10,000/- under Rule 173Q(1) for overdrawal as mentioned above is upheld. (e) Penalty imposed under Section 11AC of Rs. 2,96,126/- is set aside. (f) Penalty of Rs. 10,000/- imposed under Rule 9(2) etc. is upheld. (g) Confiscation is upheld, but the redemption fine is reduced to Rs. 25,000/-. 11. emsp The appeal is thus partly allowed in the above terms.

  ---

• 2005 (3) TMI 636 - CESTAT, BANGALORE
  
  ... ...
  ... ... ..... on, both the invoices were dispatched for each of the consignment. This actually has caused confusion. There is also a letter from Deutsche Bank that they had not made any remittance in respect of the second consignment. Even though the appellants took Modvat credit on the entire CVD, they had not taken Modvat credit in respect of the CVD paid on the second consignment. The CA also has certified that the excess duty paid has not been passed on to the customers and it is shown in the receivable accounts. There is enough evidence for short receipt of the goods, excess payment of duty and non-passing of the burden of excess duty paid, on the customers. The lower authorities have not properly appreciated the facts even though sufficient documentary evidences have been produced. Under these circumstances, the impugned order is set aside and we allow the appeal with consequential relief, if any. (Operative portion of this Order was pronounced in open court on conclusion of hearing)

  ---

• 2005 (3) TMI 635 - CESTAT, CHENNAI
  

  Cenvat/Modvat - Capital goods

  
  
  ... ...
  ... ... ..... he manufacture of the intermediate. Admittedly, in the instant case also, the capital goods in question were used for the manufacture of lsquo Cotton Yarn rsquo . Therefore, the provisions of Rule 57R(2), which are relevant only to a situation where any excisable intermediate product emerged during the course of manufacture of the final product, cannot be held against the assessees for denying them the benefit of Modvat credit on the subject capital goods. In other words, the inclusion of lsquo Carded/Combed Cotton rsquo as a final product under Rule 57Q(1) with effect from 21-10-1994 did not materially affect the assessee rsquo s right to avail capital goods credit on lsquo Carding Machine/Speed Frame rsquo used for the manufacture of lsquo Cotton Yarn rsquo . Therefore, the impugned orders denying capital goods credit to the appellants on the said machinery cannot be justified. These orders are set aside and these appeals are allowed. (Dictated and pronounced in open Court)

  ---

• 2005 (3) TMI 634 - CESTAT, NEW DELHI
  

  Cenvat/Modvat - Capital goods

  
  
  ... ...
  ... ... ..... llant are also covered at Serial No. 2 of the table by virtue of its classification under Chapter 84 since sub-heading 8480.10 is not excluded from the scope of Serial No. 2. The parts of goods falling under Chapter 84 are covered at Serial No. 5 of the above-mentioned table. Since the moulds and dies used by the appellant are classified under Chapter 84, therefore, the same are equally covered under Serial No. 2 and Serial No. 6 of the table ----- Thus I hold that the parts and accessories of moulds of sub-heading 8480.10 used by the appellants are eligible to be covered under Serial No. 5 of the table to Rule 57Q as discussed. rdquo I find that the reasons given by the Commissioner (Appeals) are correct in law and these are duly supported by the decision of the Tribunal in the case of Grindwell Norton Ltd. v. CCE, Mumbai (supra). In view of this, there is no merits in the appeal field by the Revenue. The same is accordingly, rejected. (Pronounced and dictated in open court)

  ---

• 2005 (3) TMI 633 - CESTAT, NEW DELHI
  

  Stay/Dispensation of pre-deposit - Limitation

  
  
  ... ...
  ... ... ..... ng any application for waiver of the same. 6. emsp It is admitted by the Revenue that application for waiver of pre-deposit of demand and penalty was filed during the pendency of the appeal. There is no time limit prescribed under the Rules or Act for filing the stay application. In these circumstances, the finding of the Commissioner (Appeals) that stay application was filed after the period of limitation is not sustainable. The Commissioner (Appeals) has not decided the appeal on merit, therefore, it is a fit case for re-consideration of stay application on merits by the Commissioner (Appeals). The impugned order is set aside and the matter is remanded to the Commissioner (Appeals) after waiving the pre-deposit of the demand and penalty. The Commissioner (Appeals) will decide the stay application after affording an opportunity of hearing to the applicants in accordance with law. The appeal is disposed of by way of remand. (Dictated and pronounced in open Court on 14-7-2005)

  ---

• 2005 (3) TMI 632 - CESTAT, NEW DELHI
  

  Appeal to Commissioner (Appeals)

  
  
  ... ...
  ... ... ..... cally stated that ldquo there shall be no further requirement to make any further deposit before the lower appellate authority rdquo . 3. emsp Despite the above order of waiver of requirement to make pre-deposit, the Commissioner has again rejected the Appeal before him ldquo for non-compliance of Section 35F of the Central Excise Act, 1944 rdquo . 4. emsp The order of the Commissioner is clearly illegal and has been passed beyond his jurisdiction. Such an order cannot be allowed to stand. It is quashed. (Dictated and pronounced in open Court).

  ---

• 2005 (3) TMI 631 - CESTAT, CHENNAI
  

  Punches and dies - Job work

  
  
  ... ...
  ... ... ..... onents are to be made according to the designs and specifications of the appellants, the said item is to be taken as covered under Rule 57S(8). Ld. SDR contended that the Rule permits only removal of Dyes and Moulds. Though, Punch and Dies fall under Chapter 82.07 both have different role to play. Rules do not allow removal of all the tools but only Dies. The ld. Consultant furnished the extract from the World Book Encyclopedia wherein it is stated that Dies are used in several industrial process including Die casting drawing, extrusion, forging and the stamping. Some of these processes use pairs of dies, one called a Male Die, or Punch, and the other a Female Die. I do not find any logic in not allowing Rule 57S(8) facility to Punches on the ground that they are not Dies. Dies cover punches also. The order of the Commissioner (Appeals) is legal and good I do not find any reason to interfere with it. Revenue rsquo s appeal is rejected. (Pronounced in open Court on 11-3-2005).

  ---

• 2005 (3) TMI 630 - CESTAT, CHENNAI
  

  Cenvat/Modvat - Inputs

  
  
  ... ...
  ... ... ..... Jaypee Rewa Cement v. Commissioner of Central Excise, M.P. 2001 (133) E.L.T. 3 (S.C) credit can be allowed to them. After going through the records of the case carefully, I find that Lubricants and Grease are used in the machinery installed in the factory and the mines. As far as the factory is concerned, there is no problem in extending Cenvat credit. As regards the mines, if the Lubricants and Grease are not considered as capital goods, they may be treated as inputs because it cannot be denied that they are not used in relation to the manufacture of final products namely, Cement in this case. In these circumstances, for the relevant period Jaypee Rewa Cement case squarely covers even inputs which were used outside the factory in relation to manufacture of final products. Therefore, the respondents are entitled to Cenvat credit and Order-in-Appeal does not call for any interference by this Tribunal. Revenue rsquo s appeal is rejected. (Pronounced in open Court on 11-3-2005).

  ---

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