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Case Laws
Showing 201 to 220 of 701 Records
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2005 (3) TMI 629 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... ns an element of excise duty leviable under Additional Duties of Excise (Goods of Special Importance) Act, 1957. In view of this, sub-section (5) of Section 3A will be attracted which clearly provides non-levy of Special Additional Duty to any article which is chargeable to Additional duty of Customs. As this aspect has not been considered by the adjudicating authority, we remand the matter to him for re-adjudication after affording reasonable opportunity of hearing to the appellants. We make it clear that we are only remanding the matter relating to Special Additional Duty and not other duty payable under Section 12 of the Customs Act, or under any other Act. The adjudicating authority shall also quantify the amount of duty by the appellants which they are liable to discharge. Considering all these facts and circumstances of the case, we reduce the penalty to Rs. 5,00,000/- (Rupees five lakhs). Appeal is disposed of in the above terms. (Dictated and pronounced in open Court)
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2005 (3) TMI 628 - CESTAT, NEW DELHI
SSI Exemption - Brand name of foreign company - Acknowledgement - Receipt of - Evidence ... ... ... ... ..... affidavits of the two Managing Directors as well as, that letter dated 1-4-1999 was sent by a registered post to the department. Under these circumstances, we find no substantive ground to disbelieve the plea of the appellants of having informed the department regarding non-user of foreign brand name lsquo ATR rsquo w.e.f. 1-4-1999. 5. emsp It is not the case of the department that even after the non-user of the foreign brand name, the appellants had crossed the SSI exemption limit and as such, could not claim the benefit of SSI exemption notification. Therefore, the appellants are entitled to the benefit of SSI exemption w.e.f. 1-4-1999 for having stopped using the brand name from that date. That being so, the duty demand confirmed against them cannot be sustained and is set aside. 6. emsp Consequently, the impugned order is set aside and the appeal of the appellants is allowed with consequential relief as per law. (Order dictated and pronounced in open Court on 10-3-2005).
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2005 (3) TMI 627 - CESTAT, CHENNAI
Ship spares for repair of ocean-going vessel ... ... ... ... ..... king the vessels sea-worthy amounted to ldquo repair of ocean-going vessels rdquo under S. No. 227 of Notification 23/98-Cus. As the Revenue has no case that condition No. 56 was not fulfilled by the importer, the benefit of exemption in terms of Sl. No. 227 of Notification 23/98 was available to the subject equipments imported by M/s. CSCPL, who are, therefore, not liable to pay any duty on the goods. The demand of duty and penalty on M/s. CSCPL are not sustainable. 5. emsp As the subject goods answer the description under Sl. No. 227 of Notification No. 23/98-Cus., there is no misdeclaration of imported goods in this case and, therefore, there is no question of the goods being held liable for confiscation. Therefore, the penal provisions of Section 112 of the Customs Act are also not invocable in this case. 6. emsp In the result, the impugned order is set aside and all the three appeals are allowed. (Operative part of the order already pronounced in open court on 10-3-2005)
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2005 (3) TMI 626 - CESTAT, CHENNAI
Production capacity based duty - Annual capacity of production - Expert opinion ... ... ... ... ..... rsquo s suggestion that a second opinion be obtained, and considered by the Commissioner. Again, the Commissioner, having accepted the change of parameters sought to have reckoned the same in the matter of determination of ACP. The case law cited by counsel supports this position. On these two grounds, we have to send the case back to the Commissioner for fresh determination of the appellants rsquo ACP. Insofar as the demand of duty is concerned, it is upto the department to raise demand depending on ACP to be determined by the Commissioner in accordance with law. Insofar as the penalty is concerned, the challenge succeeds as the demand of duty has been set aside. 9. emsp In the result, we set aside the impugned orders and allow the appeals by way of remand, directing ld. Commissioner of Central Excise to determine afresh the ACP of the appellants rsquo furnace for the period of dispute in accordance with law and in terms of this order. (Dictated and pronounced in open Court)
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2005 (3) TMI 625 - CESTAT, CHENNAI
Stay of suspensation of CHA licence order ... ... ... ... ..... The decision relied by the learned Advocate in the case of Sterlite Opticals Technologies v. CCE and C, Aurangabad reported in 2004 (168) E.L.T. 137 (T) 2004 (92) ECC 285 (T) is not applicable as it relates to the extension of stay beyond 180 days after the amendment carried out in the provisions of Section 129E of the Customs Act. Further, as the order obtaining this licence has been issued in the month of August, 2004, more than 6 months have passed and the livelihood of the applicant is involved, we allow the early hearing of the appeal and post the appeal for regular hearing on 11-4-2005. (Dictated and pronounced in open Court.)
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2005 (3) TMI 624 - CESTAT, CHENNAI
Stay/dispensation of pre-deposit ... ... ... ... ..... , the applicants are eligible to the benefit of Notification No. 14/2002 under S. No. 5. Opposing the prayer, Shri C. Mani, ld. JDR, submitted that as no duty has been paid on yarn, applying the ratio of the Supreme Court judgment in Dhiren Chemical Industries case, they are not eligible to the benefit of exemption as condition No. 5 clearly warrants payment of appropriate duty on the inputs. 3. emsp We have considered the submissions of both sides. In view of the decision of the Tribunal in the case of Parasrampuria Synthetics Ltd., the applicants have made out a strong prima facie case in their favour for waiver and stay of recovery of the entire amount of duty and penalty. We, therefore, stay the recovery of entire amount of duty and penalty during the pendency of the appeal. The ld. Consultant requested for lsquo Dasti rsquo order, as their goods have been detained by the Department. Hence the order may be given lsquo Dasti rsquo . (Dictated and pronounced in open Court).
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2005 (3) TMI 623 - CESTAT, NEW DELHI
... ...
... ... ..... ported in 2004 (169) E.L.T. 341 (Tri. - Del.). (4) Pee Aar Steels (P) Ltd. v. CCE, Meerut reported in 2004 (170) E.L.T. 406 (All.) 2004 (93) ECC 633 (All.) He submitted that all these cases support the contention of the department and since the Commissioner (Appeals) has not considered these decisions, the impugned order is liable to be stayed. After hearing the JDR, perusal of the records and the case laws relied on by him, I order to maintain the status quo. The appeal is fixed for regular hearing on 11-7-2005. Notice may be issued. (Dictated and pronounced in open Court on 7-3-2005)
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2005 (3) TMI 622 - CESTAT, NEW DELHI
Rectification of mistake application - Plea, new plea ... ... ... ... ..... the learned Advocate has also mentioned that the fact of provisional assessment is not even mentioned in the Triplicate copy of Bill of Entry given to the importer nor any order for provisional assessment was passed by the Proper Officer under Section 18 of the Customs Act. 4. emsp After considering the submissions of both the sides, we find that admittedly the fact of assessment being provisional was never the part of the records as it has never been mentioned in show cause notice, etc. The rectification of mistake application under Section 129B(2) of the Customs Act is only in respect of a mistake apparent from the record. As the record was silent about the provisional assessment, there can not be an error in treating the assessment final apparent from the record. Thus there is no merit in the application filed by Revenue for rectification of mistake on this count and is accordingly rejected. 5. emsp The Application is disposed of in these terms. (Pronounced in the Court).
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2005 (3) TMI 621 - CESTAT, CHENNAI
Refund - Maintainability of ... ... ... ... ..... assification originally done was correct. The appellants went to the Commissioner (Appeals). The Commissioner (Appeals) held that the assessment order itself has not been challenged. When the assessment order is not challenged and has become final, the refund claim is not maintainable. She relied on the following case laws (i) M/s. Super Cassette Industries - 2003 (162) E.L.T. 1148 (ii) National Dairy Development Board - 2003 (89) ECC 308 (Tri.) 2.Shri A.K. Jayaraj, Adv. appeared for the appellants and Shri C. Mani, DR for the Revenue. 3.Ld. Advocate fairly conceded that the case is covered against the appellants in the following decision (i) Priya Blue Industries Ltd. v. CC - 2004 (172) E.L.T. 145 (S.C.). 4.Since the assessment order has not been challenged it has become final. Under these circumstances the refund claim is not maintainable. This is established in several decisions. In view of the above findings, the appeal is rejected. (Dictated and pronounced in open Court)
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2005 (3) TMI 620 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... e are concerned, it is of utmost importance to realize that interim orders ought not to be granted merely because prima facie case has been shown. More is required. The balance of convenience must be clearly in favour of the making of an interim order and there should not be the slightest indication of a likelihood of prejudice to the interest. In the present case as the issue involved is already settled by the Tribunal against which the civil appeal is dismissed by the Hon rsquo ble Supreme Court and in the case of applicants, the Hon rsquo ble Madhya Pradesh High Court upheld the decision of the Tribunal. In these circumstances we find no ground to waive the pre-deposit of duty. We also note that applicants have already deposited an amount of Rs. 3.25 Crores in pursuance to the order passed by the Hon rsquo ble Madhya Pradesh High Court. The applicants are directed to deposit the remaining amount of duty within a period of 10 weeks and report compliance on 24-5-2005. Dasti.
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2005 (3) TMI 619 - CESTAT, NEW DELHI
Cenvat/Modvat - Valuation - Penalty - Imposition of ... ... ... ... ..... rker and moulds are still with appellant and were lying in their factory. It is not the case of the Revenue is that moulds are sold by the appellant. In these circumstances, the credit cannot be denied on the ground that for some period the moulds were lying in their factory without use. Therefore, the demand in this regard is also set aside. 10. emsp In respect of the penalty imposed on the appellant where the duty was paid even prior to show-cause notice. We find that the Tribunal in the case of CCE v. Machino Montell (I) Ltd. reported in 2004 (168) E.L.T. 466 held that where duty has been paid voluntarily prior to issuance of show-cause notice, the penalty is not imposable. In these circumstances, the penalty imposed in respect of the confirmed demand is also not sustainable and set aside. The appeals are disposed of as indicated above. The appellants are entitled for consequential relief, if any, in accordance with law. (Dictated and pronounced in open Court on 2-3-2005).
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2005 (3) TMI 618 - CESTAT, CHENNAI
Stay/dispensation of pre-deposit ... ... ... ... ..... venue. 2. emsp After considering the submissions, we are of the view that, for the purpose of the present application, it is eminently possible for us to take a prima facie view that the payment, by the assessee, of an amount equivalent to the capital goods credit in question taken allegedly in violation of the aforesaid condition of the Notification nullified the violation. In this view of the matter, it should be held that the appellants have made out a strong prima facie case against the above demand, which is on the sole ground of the aforesaid condition of the Notification having been violated. Accordingly, we grant waiver of pre-deposit and stay of recovery in respect of the amounts of duty and penalty. We are also acceding to the request of the ld. SDR for early disposal of the appeal, taking into account the fact that the case involves high stake for the Revenue. Accordingly, the appeal is posted to 18-5-2005 for final hearing. (Dictated and pronounced in open Court).
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2005 (3) TMI 617 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit – Confiscation and penalty ... ... ... ... ..... ere he set aside part of the Order-in-Original. 7. emsp The appellants rely upon the following cases - (1) M/s. Godrej Soaps and Ors. v. CCE, Mumbai - 2004 (174) E.L.T. 25 (Tri.-LB) 2004 (65) RLT 449 (CESTAT-LB) (2) M/s. Bakeman rsquo s Home Products Pvt. Ltd. and Ors. v. Collector of Customs, Mumbai - 1997 (95) E.L.T. 278 (Tribunal) 1997 (21) RLT 602 (CEGA) . The law on the point - when demand of duty gets dropped on any account, penal provisions cannot survive and confiscation of goods, which is penal in nature, cannot be upheld under Section 11AC of the Central Excise Act, 1944, read with Rule 173Q of the Central Excise Rules, 1944. 8. emsp Following the principles held in the aforesaid decisions, we are of the view that the appellants have made out a strong prima facie case and are entitled for waiver of pre-deposit amount. Accordingly, pre-deposit amount is waived and its recovery is stayed. 9. emsp Applications are disposed off in the above terms. (Pronounced in Court).
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2005 (3) TMI 616 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Demand ... ... ... ... ..... is bad in law, and, for that matter, the order of the Commissioner (Appeals) is also unsustainable. Ld. SDR has also been heard. She has endeavoured to defend the impugned order. 3. emsp It appears that prima facie there is much force in the Counsel rsquo s submission that, in the absence of Commissioner rsquo s order of determination of ACP of the appellants rsquo re-rolling mill, any demand of duty on them cannot be prima facie sustained. The party has made out a strong case for the purpose of waiver of pre-deposit and stay of recovery. Ld. Commissioner (Appeals), should, therefore, deal with the assessee rsquo s appeals on merits without insisting on any pre-deposit. Therefore, we set aside the impugned orders and allow these appeals by way of remand directing the Commissioner (Appeals) to dispose of the appeals before him on merits, without insisting on pre-deposit, in accordance with law and the principles of natural justice. (Order dictated and pronounced in open court)
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2005 (3) TMI 615 - CESTAT, BANGALORE
Demand - Appeal - Additional ground ... ... ... ... ..... gone through the rival contentions. The appellant appears to take different stands at different times. Initially they re-imported the goods free of duty under Customs Notification No. 158/95, dated 14-11-1995. They executed the necessary bond and Bank Guarantee also. After having done that it is their bounden duty to fulfil the conditions of the said Notification. They cannot take a stand later that they adopted a particular Notification wrongly and they would be entitled for benefit of a different Notification where there is no time-limit prescribed. Another important point to be noted is that the identity of the goods re-imported has not been established to the satisfaction of the Assistant Commissioner. This is very clear from the orders of the original authority and the appellate authority. In the circumstances of the case we have no other option, but to uphold the orders of the lower authorities. In result, the appeal is dismissed. (Pronounced in open Court on 31-3-2005)
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2005 (3) TMI 614 - CESTAT, BANGALORE
... ...
... ... ..... epartment had already gone into the admissibility of higher discounts and the Assistant Commissioner had decided the issue in favour of the appellants. Therefore, there is no justification for invoking the proviso to Section 11A of Central Excise Act, 1944, alleging suppression of facts. Hence, the appeal is allowed with consequential relief. rdquo This ruling is applicable to the facts of this case. The appellants granting special discount of 15 to the assessee for lifting the higher stocks has been supported by the chart produced and various invoices produced by the assessee showing that MTC has lifted higher stocks than the other dealers justifying them to receive special discount. The judgments noted supra would clearly apply to the facts of the case and by respectfully following the ratio of the case, the impugned order is set aside and the appeal is allowed with consequential relief. (Operative portion of this Order was pronounced in open Court on conclusion of hearing)
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2005 (3) TMI 613 - CESTAT, NEW DELHI
Valuation - Redemption fine and penalty - Quantum of ... ... ... ... ..... view. Following the ratio of the above decisions, we hold that loading of value is not justified and accordingly, set aside the same. rdquo 7. emsp In view of the above decision of the Tribunal we find that order whereby the value of imported goods was enhanced is not sustainable and set aside. 8. emsp The contention of the appellant at this stage is that before the decision of the Tribunal in the case of M/s. Vijay Traders, the Tribunal was taking a view that old and used photocopiers can be imported as capital goods and only in view of the DGFT Policy Circular dated 23-2-2005 the Tribunal has taken a view that such goods are consumer goods. Therefore, the submission is in respect of reduction of penalty and redemption fine. Keeping in view the facts and circumstances of the case, redemption fine is reduced to Rs. 1 lakh and penalty is also reduced to Rs. 1 lakh in each case. 9. emsp The appeals are disposed of as indicated above. (Pronounced and dictated in the open Court)
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2005 (3) TMI 612 - CESTAT, MUMBAI
Assessable value of imported goods - Valuation of the machinery - charges for setting up of plant in India - Payment of design, engineering, consultancy etc. and technical know-how fees - registration of contract for import of plant and machinery - agreement between the supplier and the buyer for supply of equipment - difference of opinion between the two members - Third member Order.
Whether the charges payable as technical assistance and erection and commissioning towards manufacture of the finished goods by the importer are to be included in the assessable value?
Order per : G.N. Srinivasan, Member (J) - HELD THAT:- The agreement to acquire know-how and technical information has been made in conjunction with the purchase of machinery and fact that the technical information and know-how is nothing but the licence fee related to the imported goods that the importer is required to pay directly as a condition of the sale of the imported goods, which is clearly covered under Rule 9(1)(c) & 9(1)(e) of the CVR, 1988. Therefore the payment of DM 3,75,426 subject to taxes i.e. net DM 2,57,167 is to be added to the transaction value.
Therefore imparting training at the supplier’s factory is actually a method of transfer of technology and know-how by the supplier to the importer and it is not related to the post-importation activities to be undertaken on imported goods in India. Therefore this payment falls within the scope of Rule 9(1)(c) and 9(1)(e) of the CVR, 1988. Therefore the payment of DM 4,39,786 subject to taxes are net of DM 3,01,254 is also to be added to the invoice value of the equipments being supplied by the collaborator to arrive at the transaction value.
We are therefore of the view that reading both contracts as a whole the assessee’s case cannot be accepted but only the department’s case is to be accepted. Hence varying the impugned order, we restore the order of the Assistant Collector.
Contra per : Gowri Shankar, Member (T) - HELD THAT:- The machinery of course was for the manufacture of contract order. However, it is not a condition in the contract of sale of such machinery, that know-how for manufacture of contract product must be paid. The agreement for the sale of the capital goods does pot stipulate that the sale and purchase of this equipment shall not be concluded unless payment is made for know-how relating to use of the particular machine. The importer was at liberty to obtain the know-how elsewhere. The fact that the contract is to be read as one, on which my colleague has placed emphasise is thus irrelevant.
Unless this is shown to be fictional and there is material to show that the erection is to be done only by the supplier of the goods, it will follow that these charges were not payable as a condition of sale of the imported goods and therefore the value is not to be included in the assessable value. It is in this context, that the importer has cited the judgment of the Supreme Court in CCE v. Essar Gujarat Ltd. [1996 (11) TMI 426 - SUPREME COURT], and in my view is correct.
In my opinion, therefore, neither of these charges were includible in the assessable value and the importer’s appeal is allowed and the Commissioner’s appeal is dismissed.
Order per : Krishna Kumar, Member (J) - HELD THAT:- The reliance of the ld. DR on Ms. Essar Gujarat [1996 (11) TMI 426 - SUPREME COURT] is misplaced for the simple reason that in that case the second-hand plant was imported and the know-how fees etc. were paid by the importer to the person other than supplier who were not related to the supplier. Whereas in the case in hand the supplier of the goods is also the collaborator who is directly receiving the fees. Therefore, applying the ratio of the decisions relied on by the ld. Counsel, I am of the opinion that the order passed by the Member (T) deserves to be accepted.
MAJORITY ORDER - We hold that the technical assistance charges and charges for erection and commissioning of the plant are not includible in the assessable value of imported goods and hence allow the appeal of the importer and dismiss the appeal of the Revenue.
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2005 (3) TMI 611 - CESTAT, MUMBAI
Confiscation and penalty - Valuation ... ... ... ... ..... while upholding the confiscation under Section 111(m), we would find that this is a fit case to reduce the redemption fine and the penalties. We accordingly, order that redemption fine be reduced to Rs. one lakh in each case and penalties to Rs. 10,000/- each only. The valuation as loaded is set aside. 7. emsp Appeals disposed of in above terms. Appeals disposed of in above terms. (Pronounced in Court) emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp Annexure B/E No. 607769 dt. 24-2-99 CFS/Sheva - 5418/6-4-99 Lot inspected. Opened and inspected all. The goods imported in this case are Old and used Copper flat coolers which are retrieved from Blast furnace. These coolers are normally embedded in the refractory walls of the furnace and water is circulated continuously through these coolers for extracting heat from the refractory walls. The configuration of these coolers is indicated as under -
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2005 (3) TMI 610 - CESTAT, BANGALORE
Dutiability - Marketability ... ... ... ... ..... st at a temperature of 1150 deg C and no further working is done on the same. This is unfit for marketing purpose and they are not known in the trade as goods and has not been marketed. The Revenue ought to have proved with evidence that the item in such conditions are marketed and are marketable. As such the condition in which the goods have emerged cannot be considered as marketable goods and hence, the appellant rsquo s contention is required to be accepted. The Commissioner has mis-applied the judgment of TISCO wherein the forged goods had already emerged after complete process of forging while in the present case, the items are in a pre-forged stage and not taken full shape as forged item for classification under 25(16)(ii) of erstwhile CET. As such, the contention of the assessee is required to be accepted by allowing the appeal. The same is allowed with consequential relief, if any. (Operative portion of this Order was pronounced in open Court on conclusion of hearing)
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