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Case Laws
Showing 181 to 200 of 781 Records
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2007 (3) TMI 653 - CESTAT, AHMEDABAD
Remission of duty ... ... ... ... ..... cause notice and to have sustained the demand. rdquo 4. emsp Similarly, in the case of U.P. State Sugar Corpn. Ltd. v. CCE, Meerut, reported in 1987 (27) E.L.T. 701 (Tribunal), it has been held that when goods have admittedly been destroyed because they were unfit for marketing and consumption, the fact that a proper application was not made to the Central Excise authorities for getting remission, would not result in liability of Excise duty. 5. emsp By applying above ratio of above decisions to the facts of instant case, it is seen that there is no dispute about the destruction of goods in the fire incident. Filing of remission application is only a procedure required to be adopted by assessee. In the absence of any clearance of the goods from the factory, confirmation of demand of duty in respect the admittedly destroyed goods is not justified. Accordingly, I set aside the impugned order and allow the appeal with consequential relief to the appellant. (Pronounced in Court)
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2007 (3) TMI 652 - CESTAT, AHMEDABAD
Demand - Confiscation and penalty - Clandestine removal ... ... ... ... ..... ow are not based upon any tangible evidence. Thus, confiscation of goods is not justified and the same is accordingly set aside. 6. emsp As regards imposition of personal penalty of Rs. 5,000/- on the processing firm M/s. Laxmi Vishnu Silk Mills, having held that confiscation is not warranted, the same is not justified for the alleged intention to remove the goods clandestinely. However, inasmuch as the processed fabrics were admittedly not entered in RG 1 register, the said appellant is liable to penalty for non-maintenance of record under the erstwhile provisions of Rule 226 of Central Excise Rules, 1944, which prescribes maximum penalty of Rs. 2,000. As such reduce the penalty on M/s. Laxmi Vishnu Silk Mills to Rs. 2,000/-. However, there is no justification for imposition of separate penalty upon partner, and as such penalty of Rs. 5,000/- imposed on Shri Sanmukhlal R. Ghael is set aside. The appeals are disposed off in above manner. (Dictated and pronounced in the Court)
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2007 (3) TMI 651 - CESTAT, AHMEDABAD
Penalty - Cenvat/Modvat - Irregular availment of credit ... ... ... ... ..... posing penalty to the extent of 100 . Hence, the present appeal. 4. emsp The appellant rsquo s main contention is that the credit of entire duty was taken by them by mistake and there is no mala fide intention on their part. Apart from the above, it is seen that the excess credit availed by them was not utilized till the reversal of the same and as such remained unutilized, thus, lending credence to the appellant stands of absence of mala fide. The same was also debited by the appellant immediately on being pointed out by the officers. It is further seen that the taking of excess credit, being a matter on record and always open to scrutiny of the department officers, cannot be made basis for attributing any mala fide intention to the appelant. In the circumstances, imposition of penalty upon them is not justified. The same is, accordingly, set aside and both the appeals are allowed in above terms, with consequential relief to the appellants. (Dictated and pronounced in Court)
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2007 (3) TMI 650 - CESTAT, AHMEDABAD
Cenvat/Modvat - Deemed credit ... ... ... ... ..... ly cleared by the supplier at nil rate of duty, deemed Modvat credit has been rightly disallowed by the authorities below. 4. emsp At this stage I may refer to another Letter No. 332/30/87-TRU, dated 20-10-87, relied upon by the learned Advocate. Apart from the fact that the said letter was not placed before the authorities below and was also not the source of deemed Modvat credit, I find that the same is not an order issued by Government of India under Rule 57G(2) provision and is only to the effect that ingot and re-rollable materials of iron or steel purchased outside may be deemed to have been paid Rs. 365/- per tonne. As such the said letter is not applicable inasmuch the same is not issued under the provision of Rule 57G(2). Further, in the present case the inputs have clearly been cleared at nil rate of duty in which case deemed credit would not be available. 5. emsp In view of the foregoing discussion I find no merit in the appeal and reject the same. (Pronounced on )
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2007 (3) TMI 649 - CESTAT, AHMEDABAD
Clandestine removal - Shortage, physical verification ... ... ... ... ..... the fact that there was a statement admitting clandestine removal. On the other hand, respondent has contended that the said statement was obtained under duress and the fact that payment of duty was made under protest is indicative of the fact that there was no acceptance of clandestine removal. The fact that the stock was being maintained chapter-wise, whereas the physical verification was done variety-wise suggests that there was actually no shortage and both authorities below have gone into details and held in their favour. 5. emsp After going through the reasoning adopted by the authorities below, I find that there is no evidence of clandestine removal of the goods. Further, the manner of verification of stock of fabrics and their comparison with the RG1 register and lot register, as discussed by the authorities below also cast doubt about the actual shortages. As such, I find no merit in the Revenue rsquo s appeal, the same is rejected. (Dictated and pronounced in Court)
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2007 (3) TMI 648 - CESTAT, AHMEDABAD
Confiscation and penalty - Absolute confiscation ... ... ... ... ..... emsp As regards the confiscation of the foreign currency of 1150 Belgium francs, I find that the explanation given by the appellant is unconvincing. It is the submission of the appellant that the said Belgium francs were retained by his son as memento for having visited Belgium. This explanation seems to be very childish. During the relevant period, it was the duty of the appellant rsquo s son to remit balance amount of foreign exchange, taken as FTs, to Reserve Bank of India, which he has not done so. The duty cast upon the son of the appellant was not discharged hence confiscation of the foreign currency is upheld and the order to that extent is maintained. Since the confiscation is upheld in light of non-discharge of duty cast upon appellant rsquo s son, penalty is not imposable on the appellant, for such confiscation. Accordingly, the appeals are allowed partly as indicated above, with consequential relief, if any to the appellant. (Pronounced in open Court on 16-3-2007)
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2007 (3) TMI 646 - CESTAT, AHMEDABAD
Penalty and interest - Cenvat/Modvat ... ... ... ... ..... not required to be levied in the matter. The appeal is allowed by setting aside the penalty and interest in the matter. rdquo 8. emsp I find that the current case of the appellant is squarely covered by the ratio of Division Bench in the case of Bharat Electronics Ltd. (supra) as reproduced above. 9. emsp As regards the personal penalty imposed on the director, I find that this penalty cannot be imposed under the provisions of Rule 13 of Cenvat Credit Rules, 2002. These penal provisions cannot be invoked for to personal penalty on the face of the fact that demand arises due to retrospective amendment. 10. emsp Accordingly, the appeals of the appellants as regard non-imposition of penalty and personal penalty on the director and the interest under Section 11AB are allowed and the impugned order to the extent is set aside while upholding the order to extent it is confirming amount of 8 on the clearances of exempted goods made by the appellant. (Dictated and pronounced in Court)
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2007 (3) TMI 645 - CESTAT, AHMEDABAD
Demand - Limitation - Extended period ... ... ... ... ..... to the Range Officer. The above discussion further establishes that the department was aware from time to time about the nature of goods/raw material burnt in the fire. However, the show cause notice raising demand of duty was issued only on 25-6-2004, after about five years rsquo period, and that also alleging suppression of facts with an intention to evade payment of duty. In the event, the O-I-O (supra) confirming the demand is clearly hit by limitation and not sustainable under the law. rdquo 5. emsp It can be seen from the above reproduced portion, the learned Commissioner (Appeals) has correctly come to the conclusion that when the officers of the range visited the premises of the respondent on 28-06-99, there cannot be any suppression fraud or mis-statement. Hence, impugned order setting aside the liability on the respondent on the question of time bar is correct and does not require any interference. The appeal filed by the Revenue is dismissed. (Pronounced in Court)
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2007 (3) TMI 644 - CESTAT, AHMEDABAD
Adjudication - Jurisdiction ... ... ... ... ..... msp Considered the submissions made at length by both sides and perused the record. The current appellants are situated at Surat and Rajkot and they are under jurisdiction of respective Commissionerates. Further I also notice that the Tribunal vide Order No. A/1956-1959/WZB/05/C-III/SMB while considering appeals arising out of the same order-in-appeal of main noticee i.e. M/s. Farmsons Fabrics (P) Ltd. and Director of the company set aside the impugned order on the ground of jurisdiction, relying upon Larger Bench decision in case of M/s. Godrej Soap Ltd. and others v. CCE, Mumbai as reported in 2004 (174) E.L.T. 25 (Tribunal-LB) 2004 (65) RLT 449. 5. emsp Respectfully following the said order dt. 19-12-2005 and the Larger Bench decision, I hold that the current appellant being not in the jurisdiction of Ahmedabad Commissionerate, the impugned orders are liable to be set aside and do so, for want of jurisdiction. 6. emsp Appeals allowed. (Dictated and pronounced in the Court)
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2007 (3) TMI 643 - CESTAT, AHMEDABAD
Adjudication - Refund ... ... ... ... ..... nefit of exemption notifications in relation to the goods supplied to all the shipbuilders. 9. emsp Strangely enough the revenue did not file appeal against the order passed by the Commissioner dated 17th of January, 1999 and the same attained finality. The revenue challenged the order of the Commissioner dated 20th of November, 1999. The Tribunal accepted the appeal relying upon its earlier decision in Collector of Central Excise, Bombay v. Moosa Haji Patrawala Pvt. Ltd. 1999 (114) E.L.T. 620 (T) . rdquo In the absence of any challenge to the order which has attained finality where the issue involved are identical and in respect of the same party, the impugned order holding the contrary view cannot stand on its legs. Accordingly, without going into other contentions raised by the learned Advocate, on the issue of attainment of finality between the parties the impugned order is liable to be set aside and, I do so. Appeal is allowed. (Dictated and pronounced in the Open Court)
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2007 (3) TMI 642 - CESTAT, AHMEDABAD
Cenvat/Modvat - Capital goods ... ... ... ... ..... emises. It can be safely concluded that steel tube, S.S. Welding pipe, piston valve of cast steel, etc. were required for the manufacture of final product. Hence, the impugned order to the extent of denial of Modvat credit on items No. 2 to 6 is liable to be set aside and I do so since the Hon rsquo ble Supreme Court in the case of Jawahar Mills Ltd. 2001 (132) E.L.T. 3 (S.C.) has allowed the Modvat credit on these items. 4. emsp As regards the Modvat credit on item No. 1 i.e. TOR steel I find that the appellant is not able to explain correctly, how this TOR steel is used in the manufacture of their final product. I find that this TOR steel is used by them in RCC construction. Hence, I find that the appellant is not eligible to avail Modvat credit on this item. Accordingly, impugned order to the extent it denies Modvat credit on TOR steel is upheld. 5. emsp Accordingly, appeal is partly allowed as indicated in the above paragraphs. (Dictated and pronounced in the Open Court.)
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2007 (3) TMI 641 - CESTAT, AHMEDABAD
Penalty - Personal penalty and interest ... ... ... ... ..... othing but cost of palletization, shrink-wrap and fumigation charges done on behalf of their merchant-exporter. Hence, they were not required to pay duty of excise on such additional amount, which does not form part of assessable value of the goods. 3. emsp As is clear from the above, there seems to be legal dispute on the inclusion of extra realization on account of bona fide impression. The fact that there was factory gate sale available, which was being picked up by assessee for payment of duty and the fact that the debit note raised by the assessee was being reflected in books of accounts, which were open for audit is indicative of the fact that there was no mala fide on the part of assessee. As such, I find no infirmity in the order of Commissioner (Appeals) for setting aside the personal penalty and interest against them. Accordingly, Revenue rsquo s appeal is rejected. 4. emsp Respondent rsquo s cross-objection also gets disposed off. (Dictated and pronounced in Court)
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2007 (3) TMI 640 - CESTAT, AHMEDABAD
... ...
... ... ..... Commissioner (Appeals) has concurred with the findings and reasoning of the original authority. 4. emsp In this case, it is not in dispute that the dies are owned by the appellant and they have in respect of each clearances recovered amount representing die and development charges. Even in a case, where dies are owned by the buyers of product and given to the manufacturer to enable manufactured it has been clarified by the Board in their Circular No. 170/4/96-CX., dated 23-1-1996 that apportioned cost of such dies depending upon the expected life and capability of the pattern and the quantity of castings that could be manufacture should be added in assessable value. The adjudicating authority as well as the Commissioner (Appeals) have relied on the said Circular to draw support for their decision. No valid grounds have been adduced to interfere with the findings of the Commissioner (Appeals). 5. emsp Therefore, the appeal is dismissed. (Dictated and pronounced in open Court)
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2007 (3) TMI 639 - CESTAT, AHMEDABAD
Cenvat/Modvat on inputs ... ... ... ... ..... entary invoice is admissible, in absence of it is disprove by the department on the ground of fraud, collusion or any willful mis-statement or suppression of facts. Accordingly, the interest demanded from the appellant under rule 13 of the CENVAT credit rule 2002 is not justified. rdquo From the above reproduced findings of the Commissioner (Appeals) it is very clear that there is nothing on record to indicate that the input supplier was issued a show cause notice invoking first proviso to Section 11A for short payment made by him (as was pointed out by the auditors to the supplier of inputs). 4. emsp Accordingly, in the facts and circumstances of the case, I do not find any merit in the appeal filed by the Revenue, as, even today there is no evidence contrary to the findings of the Commissioner (Appeals). Appeal filed by the Revenue is dismissed and since cross-objection is in support of the Order-in-Appeal, it is also disposed of. (Dictated and pronounced in the Open Court)
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2007 (3) TMI 638 - CESTAT, AHMEDABAD
Refund of redemption fine ... ... ... ... ..... le High Court of Gujarat in the case of Maheswari Mills Ltd. reported at 1988 (35) E.L.T. 252 (Guj.). The adjudicating authority has come to the conclusion that the refund of duty is allowed based upon the decision of the Commissioner (Appeals) to set aside the confiscation and consequent refund of redemption fine paid by the respondent, in lieu of confiscation. The Revenue has not produced any evidence to the effect that the order-in-appeal favouring of the respondent as regard setting aside of the confiscation has been challenged/stayed and/or allowed by the Tribunal or High Court. In the absence of any such evidence, once the an appellate authority has allowed the appeal of the respondent against confiscation, redemption fine paid by the respondent in lieu of confiscation cannot be held back by the authorities. 3. emsp In view of these facts and circumstances of the case I do not find any merit in the appeal filed by the Revenue. (Dictated and pronounced in the Open Court)
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2007 (3) TMI 637 - CESTAT, AHMEDABAD
Classification ... ... ... ... ..... nt view is preferable for any reason. rdquo 3.1 emsp A Division Bench of this Tribunal in Mehsana District Co-op. Milk Products Union Ltd. v. CCE, Ahmedabad, reported in 2004 (167) E.L.T. 456 (Tri.-Del.) after considering the aforesaid decisions and the ambit of the said two sub-headings rejected the claim of the assessee that when the sub-heading 0401.13 refers to ldquo milk powder rdquo , it is referring only to ldquo whole milk powder rdquo and not to other varieties of milk powder. It was categorically held that, ldquo the skimmed milk powder manufactured by the appellants is classifiable under sub-heading 0401.13 of the Central Excise Tariff rdquo . We do not find any valid reason to take a different view of the matter. Therefore, respectfully following the ratio of the said decision, we hold that the appellant has rightly held that the skimmed milk powder was classifiable under heading 0401.13. The appeal is, therefore, dismissed. (Dictated and pronounced in open Court)
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2007 (3) TMI 636 - CESTAT, MUMBAI
Recovery proceedings ... ... ... ... ..... , dated 21-2-2000 passed by the Assistant Commissioner and confirmed by the Commissioner (Appeals). The appellate authority has recorded that the appeal there against have already been filed before the CESTAT, Mumbai and it is only in the absence of any stay by the Tribunal that the Assistant Commissioner has issued the letter for recovery. If the appellant is aggrieved with the said letter, they can approach the Tribunal for grant of stay. By observing so, he has dismissed the appeal as not sustainable. 3. emsp I do not find any infirmity in the above view of the Commissioner (Appeals). The demands confirmed by the authorities below, unless stayed by the higher appellate forum, can be recovered by the authorities in accordance with the law. Such recovery proceedings are not appealable before the Commissioner (Appeals). Hence, the appeal has rightly been dismissed by the Commissioner (Appeals) as not sustainable. Accordingly, I reject the present appeal. (Pronounced in Court)
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2007 (3) TMI 635 - CESTAT, KOLKATA
Interest - Price variation clause in contract ... ... ... ... ..... had a price variation clause and therefore, the assessment was provisional and hence no interest is payable in this regard. We are of the view that the impugned order passed by the lower appellate authority is perfectly legal and correct and the same requires no interference. As such, the Departmental rsquo s appeals are rejected along with stay petitions. Cross Objection filed by the respondents also stands disposed off. (Dictated and pronounced in the open Court)
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2007 (3) TMI 633 - CESTAT, MUMBAI
Import of second-hand capital goods ... ... ... ... ..... n imposed vide Notification 31(RE-2005)/2004-2009, dated 19-10-2005. The original authority ought to have known that bill of entry No. 0002196 was filed as earlier as on 4-10-05. It is difficult to reconcile how the original authority is relying the notification issued on 19-10-05 to an import made on 4-10-05. The said notification is not even clarificatory in nature. It amends the substantive provisions of the policy. Therefore it has to be only prospective. This shows either lack of knowledge of these elementary law or deliberate attempt to scuttle the bona fide right of the importer by any means. This kind of action not only brings un-called for harassment to the trade but at the same time be little the esteem of the Department in the eyes of the public rdquo . 3. emsp The Revenue has not given any effective reasons for rebutting the above findings of the Commissioner (Appeals), I find no infirmity in the order passed by him and accordingly the appeal filed by the Revenue.
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2007 (3) TMI 632 - CESTAT, KOLKATA
Interest and penalty ... ... ... ... ..... age has been honoured by the respondents without filing an appeal against the same, the action of the lower Appellate Authority in waiving the penalty and interest is not justified. Since there was a shortage of finished goods, the same would justify the inference taken in respect of intention to evade payment of duty on the stock found short. In such a situation, penal liability and interest would automatically arise. As such, the impugned Order setting aside the penalty and interest, is set aside. The respondents are directed to pay the interest as per law. A penalty of Rs. 5,000/- (Rupees five thousand) is also imposed on them. The appeal is allowed in the above terms. (Dictated and pronounced in the open Court)
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