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Showing 181 to 200 of 520 Records
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2004 (5) TMI 444 - CESTAT, BANGALORE
Appeal - Limitation ... ... ... ... ..... on and perusal of the affidavit filed by the Director of the appellant concern, we notice that the Deponent Shri R. Narayanaswamy himself states that there was a delay of 213 days in getting the approval from the Government, preparing the appeal memorandum, getting the sanctions for paying the fee and to get the verification signed. They stated that out of the above period the limitation period is 90 days and the delay caused is 116 days. The affidavits have blamed the State Government for the delay in giving the permission. After due consideration of the affidavit, we are of the considered opinion that appellants have been negligent in their approach. The delay in inter-departmental movement of files has held to be not a cause to condone the delay as held in the case of Union of India v. Tata Yodogawa Ltd. There is no merit in these applications for condonation and the same requires to be rejected. CoD applications are rejected and as a result the appeals are also dismissed.
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2004 (5) TMI 443 - CESTAT, MUMBAI
Redemption fine and penalty - Quantum of ... ... ... ... ..... agar Auto Works and Other orders that appeal is required to be allowed, following the earlier orders of determining the redemption fine at 45 and penalty at 5 as no case is made out to sustain the fines and penalties, at the levels as arrived at by the Commissioner. (d) emsp The plea of the ld. DR that there are no fetters on the redemption fine required to be imposed but the provisions of Section 125 of the Customs Act, 1962, are well taken. But the adjudicator cannot also violate with infirmity the instructions with Appraising Manual and Boards order. The higher fines and penalties, if justified could be imposed. However justification for the same should emerge from the orders and not to be sought elsewhere. The order in this case does not speak or support any such justification. 3. emsp In view of the findings herein above, appeals allowed partly by reducing the fine and penalty to 45 and 5 of the determined values, which are not pressed in appeal, therefore not disturbed.
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2004 (5) TMI 442 - CESTAT, NEW DELHI
Demand/Reversal of credit ... ... ... ... ..... id appropriate duty at the time of removal of these goods. The appellant had only taken credit of the duty paid by those manufacturers as those goods were supposed to be used as inputs in the production of final products. The duty liability of those inputs remain, already determined and discharged at the time of their original removal. There is no provision in Central Excise law for reassessment of goods, which had once been removed after payment of duty. Therefore, as held by this Tribunal in its earlier decision, what an assessee is required to do when he removes inputs as such can only be to restore the credit, which he had taken. In the present cases, the appellants have already restored the credit already taken. Nothing more was required of them. There was no short levy of duty involved. The impugned orders which have held to the contrary are not sustainable. They are, therefore, set aside and the appeals are allowed, with consequential relief, if any, to the appellants.
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2004 (5) TMI 441 - CESTAT, CHENNAI
Cenvat/Modvat - Capital goods ... ... ... ... ..... facts of their case. 7. emsp We are not in a position to countenance the plea taken by ld. JDR appearing on behalf of the revenue. Respectfully following the ratio of the said decision cited supra and the discussion, we are of the considered opinion that the credit would be admissible on Rebar coils, CTD bars, TOR Steel, joists and cement. We, therefore, allow the appeal filed by the appellant-assessee. We also reject the revenue appeal in Appeal No. E/l393/1998 and allow the credit of duty on Loaders under Rule 57Q of the rules ibid. As regards the admissibility of the Modvat credit on Bulldozer we remand the case back to the adjudicating authority and we allow the appeal of the revenue by way of remand in respect of eligibility or otherwise of the item namely, bulldozer. We also allow the appeal of the appellant in respect of Modvat credit on Rebar coils, CTD Bars, TOR Steel, Joists and Cement with consequential relief, if any to the appellant and it is ordered accordingly.
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2004 (5) TMI 440 - CESTAT, KOLKATA
Appeal - Grounds - New grounds ... ... ... ... ..... ing authority has not considered the same at the time of passing of the order. 4. emsp We have considered the submissions made by both the sides as also the various decisions relied upon by the ld. Adv. appearing for the appellant. We find that the ratio of the said decisions laying down that no new case should be made at the appeal stage are not applicable to the facts of the instant case inasmuch as it is an undisputed fact that the assessments were provisional. It is not a fact, which is being brought on record for the first time by either side. If the said fact has not attracted attention of the adjudicating authority while passing order, it cannot be said that the said fact would lose its importance. Undisputedly the assessments were provisional in which case there is no question of any time bar. As such we do not find any merits in the above contention of the ld. Adv. and reject his plea of limitation. The appeal is now listed for regular hearing on merits on 19-4-2004.
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2004 (5) TMI 439 - CESTAT, NEW DELHI
Interest and penalty ... ... ... ... ..... st 18 per annum under provisions of Rule 96ZO of Central Excise Rules, 1944 on the amount of duty not deposited by due date for the period from the due date of payment to 7-5-2001 rdquo . 4. emsp We have heard the learned Counsel for the appellant as well as the Learned SDR. 5. emsp In a case where the annual capacity determined by the Commissioner was set aside by this Tribunal three times, we are unable to understand how the Commissioner can Impose penalty and direct payment of interest by the assessee on the basis of the Initial fixation which was held to be unsustainable by this Tribunal. The facts of the case would clearly show that there was no bona fides on the part of the Commissioner and he is bent upon harassing the assessee. We find no other explanation for the strange action on the part of the Commissioner in this impugned order. 6. emsp We set aside the order impugned and allow the appeal. We direct the Registry to send a copy of this order to the Chairman, CBEC.
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2004 (5) TMI 438 - CESTAT, MUMBAI
Demand - Limitation - Suppression of facts - SSI Exemption ... ... ... ... ..... t for 1997-98 it is Rs. 11,93,525/- for 1998-99 it is Rs. 20,26,511/- and for 1999-2000 it is Rs. 3,04,783/-. The appellants placed reliance on the judgment of Tribunal reported in 1993 (63) E.L.T. 759 (Tri.) in the case of Faridabad Tools Pvt. Ltd. v. Collector of Central Excise, wherein it has been held that, a manufacturer is permitted to take benefit of full exemption as well as partial payment in terms of Notification No. 175/86-CE provided the goods are different in each mode of duty payment. This judgment has been confirmed by the Hon rsquo ble Supreme Court as reported in 1996 (82) E.L.T. A149. As already stated full exemption is sought in respect of goods falling under Chapter 39, while partial duty payment has been made in respect of other goods (Chapters 32 and 29). Consequently, we hold that the impugned order passed by the Commissioner is required to be set aside and is so set aside. The appeal is allowed with consequential relief, if any, in accordance with law.
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2004 (5) TMI 437 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... ver has been made out in the light of the Apex Court decision in the case of G. Claridge and Company Ltd. v. CCE, 1991 (52) E.L.T. 341 (S.C.) wherein it has been held that the expression ldquo containers rdquo occurring in Chapter Heading 48.18 of the CETA, 1985 has to be construed to mean packing containers which are analogous to boxes and cartons and further held that, also covered under the same heading are, an enclosed receptacle which can be used for storage and transportation of articles and egg trays being receptacles which are not covered or enclosed cannot be used for transportation of articles and therefore cannot be regarded as containers under Heading 48.18. In the present case, the folders for packing of hosiery items like vests are not covered or enclosed and therefore prima facie cannot be regarded as containers falling under Chapter Heading 48.19. Accordingly pre-deposit of duty and penalty stands dispensed with and recovery thereof stayed pending the appeals.
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2004 (5) TMI 436 - CESTAT, NEW DELHI
SSI Exemption - Brand name - Demand - Limitation - Valuation ... ... ... ... ..... pellants. We, therefore, hold that the appellants are not eligible for the benefit of SSI Exemption Notification as they are clearing the impugned goods bearing the brand name of another person. However, we agree with the learned Consultant that in view of the decision of the Larger Bench in the case of Srichakra Tyres Ltd. and also the decision of the Supreme Court in the case of Maruti Udyog Ltd., 2002 (141) E.L.T. 3 (S.C.) 2002 (80) ECC 249 (S.C.), the sale price has to be treated as cum-duty price. Accordingly, the demand of duty is to be re-computed by the Adjudicating Authority by taking the sale price as cum-duty price and allowing deduction of excise duty and duty so determined will be payable by the appellants. Taking into consideration all the facts and circumstances of the case, we are of the view that interest of justice will be met if the appellants are directed to pay a penalty of Rs. 30,000/- only. We order accordingly. The appeal is disposed of in these terms.
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2004 (5) TMI 435 - CESTAT, MUMBAI
Penalty - Re-fixation of price of goods by Government ... ... ... ... ..... they visited. The failure to comply with provisional assessment procedure as found by the adjudicator does not materially effect the position, since there is no duty found to be barred by limitation or/and loss to revenue on that account. Penalty under Section 11AC is not called for in facts of this case. The same is set aside. As regard penalty under Rule 173Q, since the ONGC declared whatever was the approved price as per the Ministry of Petroleum and cleared goods at these rates, there is no contravention of any rule. Penalty under Rule 173Q is therefore to be set aside. 6. emsp As regards interest, Section 11AB as arrived at, the liability to pay interest will start for the first day of the month, immediately after the month in which the duty ought to have been paid by the manufacturer and sub-section (2) declares the same not to be retrospective. Interest therefore has to be computed as per laws. 7. emsp Appeal as regards penalty under Section 11AC and Rule 173Q allowed.
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2004 (5) TMI 434 - CESTAT, MUMBAI
Tobacco - Branded tobacco - Demand - Limitation ... ... ... ... ..... goods are classifiable as branded tobacco. 3. emsp We also find that the appellants were asked in March 1995 to themselves registered and pay duty on branded tobacco. However, both the appellants informed the Department that they had stopped printing brand name on the packets w.e.f. 16-3-1995 and further that they would not put any brand on their product in future. However, it was found during visits in February 1996 that they had not adhered to their undertaking and that they were using brand names on the packets. As such, the Commissioner has come to a conclusion that extended time limit is applicable in respect of the demand of duty against the appellants. 4. emsp We are of the view that the Commissioner (Appeals) has passed a correct order in regard to classification of the impugned goods as also on the question of limitation. We are also of the view that the appellants have not made out a case requiring interference with the impugned order. Hence, we dismiss the appeals.
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2004 (5) TMI 433 - CESTAT, NEW DELHI
SSI Exemption - Brand name ... ... ... ... ..... referred to the certificate dated 30-5-03 issued by the Trade Mark Registry in this regard. Still the Commissioner refused to grant the benefit of exemption to the appellant. 2. emsp It is contended that when this certificate of registration is obtained in its name, the appellant became the owner of the trade mark which is used in its product and there is no justification in denying the benefit of exemption. Reference to the Joint Venture Agreement and its terms by the Commissioner has no relevance for the issue to be decided. We heard the learned SDR also. 3. emsp In view of the facts of the case and that also the order of the remand by this Tribunal we are of the view that Commissioner has erred in denying the benefit of exemption even after being satisfied that the appellant has got the trade mark lsquo Cristopia rsquo registered in its name w.e.f. 27-11-96 i.e. before the period involved in this proceeding. We, therefore, set aside the order impugned and allow the appeal.
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2004 (5) TMI 432 - CESTAT, NEW DELHI
Natural justice - Show cause notice, service of ... ... ... ... ..... g and fraudulent acts, and to seek the remand of the case on the ground that there had been violation of rules of natural justice for de novo trial against him. The case pertains to the year 1998. It is well settled that one who seeks equity must come with clean hands. The appellant after avoiding participation in the proceedings deliberately, knowingly, by following the footsteps of his principal Rajesh who became non-traceable, cannot be allowed to raise grievance about the violation of the rules of natural justice. In our view, there had been no such violation. The impugned order imposing penalty of Rs. 2 lakhs on him had been rightly passed keeping in view the amount of draw back involved especially when the learned Counsel has not challenged the correctness of the allegations made against the appellant on merits before us. 7. emsp In the light of what has been discussed above, we uphold the impugned order against the appellant and dismiss his appeal, being without merit.
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2004 (5) TMI 431 - CESTAT, MUMBAI
Refund - Bail security - Adjudication - Interim deposit - Settlement Commission - Deposit pending settlement
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2004 (5) TMI 430 - CESTAT, MUMBAI
Manufacture - Meat - Brand name - Meat preparations - Packing ... ... ... ... ..... ionally printed on the pouch would therefore be constructed to serve as an emblem of a manufacturer, not as a mark specifically made to indicate exclusive rely a relationship in trade of the disputed preparations. Projection of an image by such an emblem would not cause relationship in trade of the specific goods established and lead it to be and classified by involving Chapter 2 of Chapter 16. The orders of CCE (Appeals) are therefore required to be confirmed as regards the applicability of the mark COSTA. (g) Since the classification of the products under Chapter 2 or and Chapter 16 is required to be re-determined, in light of the findings herein, the matters are required to be remitted back to the original authority to re-determine the classification and thereafter work out the duty demands, if any. The issue of penalty kept open and be re-determined in view of the quantum of demands, if any, after hearing the assessee. 3. emsp All appeals allowed as remand in above terms.
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2004 (5) TMI 429 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... learances for SSI exemption purposes. Counsel has filed a copy of the relevant Order-in-Original dated 29-2-2000, which we have perused. Ld. SDR has not been able to successfully contest the finality and binding nature of the above finding of fact in Order-in-Original dated 29-2-2000 ibid. The above finding is prima facie binding on both sides. In this view of the matter, M/s. TES have made out a strong case for waiver of pre-deposit of the aforesaid amounts of Rs. 53.92 lakhs and Rs. 43.9 lakhs, in the result, we grant waiver of pre-deposit and stay of recovery in respect of the amounts of duty demanded by the Commissioner, barring the amount of Rs. 5.46 lakhs, which shall be deposited by the party within a month. 4. emsp Since we have found a strong prima facie case in respect of a major part of the demand, we are inclined to dispense with the requirement of pre-deposit of the penalty amounts. It is ordered accordingly. 5. emsp M/s. TES shall report compliance on 28-6-2004.
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2004 (5) TMI 428 - CESTAT, MUMBAI
Classification - Cenvat/Modvat on inputs ... ... ... ... ..... eries rsquo and not as lsquo Battery Assemblies rsquo as per Modvat rules. Discharge of duties at rates applicable to 8507 as alleged in the notice is not permissible. The facts as to what were the actual goods cleared would need verification. The ld. D.R. rsquo s submissions in this regard are upheld inasmuch as if Battery simplicitor received as inputs is cleared quantum of duty demand reversals need to be confirmed after verifying the facts. This issue only consequent to the notice is required to be remitted to the original authority. 2. emsp In view of the findings the Classification List No. 5/94 approvals arrived at by the Assistant Collector is upheld and the order is to be confirmed. The Commissioner of Central Excise (Appeals) order is therefore to be set aside. The order on demand of duty pursuant to the notice dated 23-1-1995 is to be re-determined by remitting the same back to the original authority. Ordered accordingly. 3. emsp Appeals disposed of in above terms.
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2004 (5) TMI 427 - CESTAT, MUMBAI
EXIM - Staple pins - Used as stationery in garment industry ... ... ... ... ..... anual Vol. II Chapter 5 Para 114(i) provides - ldquo (i) emsp Import of goods on basis of previous clearance, where identical consignments have been cleared previously without objection from the Customs under the same licence description (or under OGL) no penalty is to be imposed provided the Collector of Customs is satisfied that the bona fides of the importer are beyond question. However, each case should be examined on merits. Such lenient treatment should not be given as a general rule, since it is quite possible for an importer to get a small pilot consignment passed through the Customs and then claim the benefit o clearance for a larger consignment. rdquo (Emphasis supplied) No finding about lack of bona fides have been arrived by both the lower authorities. The penalty imposed therefore cannot be upheld in view of the clear instructions in the Manual. The same is to be thus set aside. 4. emsp In view of the findings arrived, the penalty is set aside and appeal allowed.
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2004 (5) TMI 426 - CESTAT, MUMBAI
Classifiaction - Confiscation - Import without licence ... ... ... ... ..... efore, accessory is covered by lsquo part rsquo in terms of the Exim Policy. He accordingly held that the impugned goods are parts and components falling under Exim Code 39269009.40 of the ITC (HS). 5. emsp We observe that the goods under import are articles of plastic. They cannot be considered as accessories of school bags, as school bags themselves are complete articles and trolley carts cannot be considered either as accessories or as parts of school bags. It cannot be argued that a school bag is incomplete without a trolley cart. The fact that school bag can be kept on a trolley cart does not make a trolley cart as accessory of such bag. For the purpose of ITC (HS) classification, they are correctly classifiable under 39269009.90. The goods are restricted and cannot be imported without a valid licence. We hold that the Commissioner (Appeals) rsquo s reasoning is not correct. 6. emsp We allow the appeal of the Revenue and set aside the order of the Commissioner (Appeals).
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2004 (5) TMI 425 - CESTAT, NEW DELHI
Penalty - Quantum ... ... ... ... ..... nal under Section 35F for having failed to comply with its stay order. 5. emsp After the dismissal of the abatement claim of the appellants, the duty of the amount in question detailed above has been affirmed against the appellants as they did not pay the duty for the period for which they claimed abatement by alleging closure of their furnace. The order rejecting their abatement claim had attained the finality. Therefore, the duty has been rightly confirmed against the appellants. 6. emsp However, regarding imposition of penalty equal to the amount of duty, the prayer of the Counsel that it is too harsh and that the appellants had no fraudulent intention to evade the duty as they had been prosecuting their abatement claim, deserves to be accepted. Therefore, keeping the facts and circumstances of the case, the penalty is reduced to Rs. 50,000/-. Except for this modification in penalty, the impugned order is upheld. The appeal of the appellants accordingly stands disposed of.
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