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Case Laws
Showing 221 to 240 of 623 Records
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2007 (1) TMI 430 - CESTAT, BANGALORE
Export - Proof of export not produced ... ... ... ... ..... Jt. CDR who submits that the Revenue is only challenging the issue of non-following the procedure. The Revenue s view is that there is no provision to condone the procedural lapses relating to export, unlike that was available under the earlier Rule 12 of the Central Excise Rules, 1944. 4. emsp The learned Counsel, Shri Raghu submits that the duty cannot be confirmed as the goods have been exported. He submits that there was only procedural lapses which is condonable in the light of the several judgments. 5. emsp We have carefully considered the submissions of both the sides and find that the ground made by the Department in the appeal is flimsy and is not genuine for consideration. The Commissioner (Appeals) has considered the matter in detail and has not imposed any penalty in the matter. The Commissioner (Appeals) has rightly followed the citation rendered by the Tribunal. There is no merit in the appeal and the same is rejected. (Pronounced and dictated in the open Court)
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2007 (1) TMI 429 - CESTAT, NEW DELHI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... liable for action under the Central Excise Rules. No show cause notice was issued to the dealer. Therefore, credit cannot be denied to the appellants. I find that in this case, the appellants received certain duty paid inputs from M/s. Vishal Iron Works a registered dealer. The dealer purchased the inputs from M/s. Tribhuvan Industries Ltd. The dealer used extra copy of invoice for taking credit. I find that the appellant cannot be faulted for taking wrong credit on the ground that the supplier of inputs i.e. dealer has taken the credit on the strength of extra copy of invoice. In this situation, the dealer is liable for action under the Central Excise Rules. In these circumstances, as the appellant has availed credit on valid document, therefore, if some irregularity is done by the dealer who has availed credit on the strength of extra copy is liable of action. The impugned order is set aside. The appeal is allowed. (Order dictated and pronounced in the open Court on 3-1-07)
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2007 (1) TMI 428 - CESTAT, NEW DELHI
Penalty - Quantum of ... ... ... ... ..... Q indicates maximum amount of penalty and there is no mention of minimum amount. He relied upon the decision of the Tribunal in the case of Commissioner of Central Excise, Lucknow v. Kisan Sahakari Chini Mills Ltd., - 2006 (193) E.L.T. 365 (Tri.-Del.) He submits that the Revenue rsquo s appeal is liable to be dismissed. 6. emsp After considering the submissions of both sides and on perusal of the record, I find that Rule 173Q indicate that ldquo manufacturer shall be liable to a penalty not exceeding three times the value of the excisable goods or Rs. 5,000/- whichever is greater. rdquo Thus, it is clear from the plain reading of the said rule that maximum amount of penalty was indicated therein. So, the contention of the Revenue that Rule 173Q suggests minimum limit of penalty is incorrect. So, I do not find any reason to interfere with the order of the Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is dismissed. (Dictated and pronounced in open court).
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2007 (1) TMI 427 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Demand and penalty - Valuation ... ... ... ... ..... his settlement relates to a part of the period of dispute involved in the present case. Thus, it appears, the department is stopped from pleading that the 10 SSI units were working as lsquo dummies rsquo of the appellant-firm. Therefore, the present demand of duty on the appellants, which is based on a premise that the 10 SSI units were only dummies of the appellant-firm, may not be sustainable in law. The appellants have also contested the above demand of duty on the ground of time-bar. It is said that they were filing RT-12 returns from time to time during the period of dispute and nothing was concealed from the department. This aspect however needs to be looked into in further details, which can be done at the final hearing stage. 2. emsp Having found prima facie case for the appellants on merits, we are inclined to grant waiver of pre-deposit and stay of recovery in respect of the duty and penalty amounts. It is ordered accordingly. (Dictated and pronounced in open Court)
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2007 (1) TMI 426 - CESTAT, NEW DELHI
Production capacity based duty - Abatement claim ... ... ... ... ..... lause (b) of sub-rule (2) were also admittedly sent. Even the intimations under Clause (e) of Rule 96ZO, required in the context clause (c) were also sent but only the hours of starting and closing were not mentioned while referring to the dates of closure and date of re-starting the furnace, and the facts were verified and found to be correct, which shows that there was substantial compliance with the statutory requirements of sub-rule (2) of Rule 96ZO. Therefore, there was no justification in denying the benefit of abatement in respect these periods, more particularly when even the intimations regarding time were subsequently supplied and could have been verified from the contemporaneous record at the time when the Inspector visited the factory and most likely would have been so verified. 13. emsp For the above reasons, the impugned order cannot be sustained and is hereby setting aside and the appeal is allowed with consequential reliefs. (Order dictated in the open Court).
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2007 (1) TMI 425 - CESTAT, BANGALORE
Cenvat/Modvat ... ... ... ... ..... Tribunal in respect of the above items for grant of Modvat credit except in regard to one item i.e. Chipper Knives in their RC No. 20/1998 dated 21-12-2004. 2. emsp The appellants had filed an application for passing the Final Order before the Chennai Bench. As the files were not traceable, the matter was sent to this Bench. The appellants have built up the file and the same is put up for passing the Final Order. The appellants have prayed for passing a Final Order in terms of Section 35H of the CE Act. In terms of the said order under Section 35H, the Final Order is being passed in this case as follows - 3. emsp The assessee is eligible for claiming Modvat credit in respect of the following items viz. (i) Wire Netting (ii) Dandy Covers and (iii) Woollen Felts except Chipper Knives. 4. emsp The department shall proceed to grant the relief of Modvat credit in respect of these three items in terms of this Final Order. Ordered accordingly. (Pronounced and dictated in open Court
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2007 (1) TMI 424 - CESTAT, NEW DELHI
Interest - Refund - Relevant date ... ... ... ... ..... t filed the refund claim on 12-11-2003. I find that Hon rsquo ble High Court of Calcutta in the case of Eastern Coils Private Ltd. v. CCE, Kolkata-1 (Supra) held that payment of interest on the pre-deposit will be calculated from the date of the last order. It has further been held that such order will be the date of the order of the CEGAT or any further order finally passed by any Court whereunder order of CEGAT was challenged. I find that in this case, the order dated 29-8-2003 of the Commissioner (Appeals) reached its finality. As such, the Commissioner (Appeals) rightly sanctioned interest from the date of the order-in-appeal. The judgments relied upon by the appellant are in connection with the Writ Petition under Article 226 of the Constitution of India and the facts of the said cases are not applicable herein. Accordingly, I do not find any reason to interfere with the order of the Commissioner (Appeals). The appeal is rejected. (Dictated and pronounced in open court).
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2007 (1) TMI 422 - CESTAT, WESMUMBAI
Ore - Roasted molybdenum ore concentrate ... ... ... ... ..... ithout preparation or concentration, as such, after taking into account the Explanatory Notes to HSN, he has held in favour of the respondents. 2. emsp After hearing both the sides we find that an identical issue was considered by the Tribunal in the case of Commissioner of Customs (Imports), Mumbai v. Hindustan Gas and Industries Ltd. vide its order reported in 2006 (202) E.L.T. 693 and it was held that the term lsquo ore rsquo includes concentrate that roasting of lsquo ore rsquo to obtain concentrate does not amount to manufacture and that in view of Supreme Court decision in the case of MMTC reported in 1983 (13) E.L.T. 1542 (S.C.), the ore as well as the concentrate fall under the same heading and are species of lsquo ore rsquo which is genus, inasmuch as the said judgment has taken into account the entire aspects of the case and has rejected the Revenue rsquo s appeal. By following the same we dismiss the present appeal of the Revenue. (Pronounced and dictated in Court)
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2007 (1) TMI 421 - CESTAT, MUMBAI
Penalty - Imposition of ... ... ... ... ..... ds from a factory during lock out and under notice of strike, the appellants should be in a position to deposit the duties as provided under law. In view of this circumstance, the observations made by the ld. Commissioner (Appeals) appear to be not correct and cannot be upheld in saying that there was no willful attempt in not discharging duty. Penalty for noncompliance of the Central Excise law to discharge the duty is very much called for. Financial constraints cannot be a reason to exonerate from imposition of penalty. Of-course there may exists a reason to reduce the quantum of penalty if called for. In the aforesaid circumstances it is felt desirable to remand the matter back to the Commissioner (Appeals) to apply his mind as regard the quantum of penalty after hearing both sides and ascertaining the conduct of the assessee in having finally discharged the final amount of duty with interest. 7. emsp Thus, appeal is allowed in above terms. (Pronounced in Court on 19-1-07)
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2007 (1) TMI 420 - CESTAT, CHENNAI
Precedent - Penalty - Quantum of ... ... ... ... ..... which had also been dismissed by the Supreme Court. Therefore, the scope of the relevant rules was as interpreted by the Tribunal. A decision made following the ratio laid down by the Tribunal is binding on the authorities unless the order of the Tribunal was appealed against and stayed/allowed. Therefore, the subject appeal is liable to be dismissed. Incidentally, it is also seen that the authorization (signed by the Committee of Commissioners) had authorized the Assistant Commissioner to file an appeal against lsquo setting aside the imposition of the penalty rsquo only. 4. emsp As regards the reduction of penalty from Rs. 1,18,862/- to Rs. 5000/-, I do not find the decision un-reasonable for the reason that the total demand in the original order has been reduced from Rs. 1,18,862/- to Rs. 36,925/- in the impugned order. In the circumstances, I do not find any merit in the appeal of the revenue. Accordingly, the same is dismissed. (Dictated and pronounced in the open Court)
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2007 (1) TMI 419 - CESTAT, KOLKATA
Remand - Order by lower authority when matter is sub judice before higher authority ... ... ... ... ..... ve filed a Writ Petition against the said letter challenging the clarification and the matter is sub judice before the Hon rsquo ble High Court of Calcutta. 2.1 emsp As the said clarification dated 4-4-2000 has more bearing on the . case of the appellants, we are of the view that the impugned Order passed by the adjudicating Commissioner without having the benefit of the judgment of the Hon rsquo ble High Court, is premature apart from being prejudicial to the interest of the appellants. As such, we set aside the impugned Order and remand the matter to the adjudicating Commissioner with the consent of both sides to take a decision afresh after the Writ Petition filed by the appellants against the said letter dated 4-4-2000, is decided by the Hon rsquo ble High Court. The appellants shall be given a reasonable opportunity of being heard before passing a final order. 3. emsp Both the appeals are allowed by way of remand in above terms. Dictated and pronounced in the open Court.
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2007 (1) TMI 418 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... of the Cenvat Credit Rules, 2004. 5. emsp After hearing the learned D.R. and on perusal of the record, I find that Rule 6(3)(b) of the Cenvat Credit Rules, 2004 provides that the manufacture shall pay equal to 10 of the value of the exempted final products charged by the manufacturer for sale of such goods at the time of their clearances from the factory. In this case, the applicant cleared exempted final products sprinkler system for sale and therefore, they are liable to pay 10 the value of sprinkler system. Thus, the applicant has failed to make out a prima-facie case for waiver of total amount of pre-deposit of duty. After considering the facts and circumstances of the case and financial hardship, I direct the applicant to pre-deposit Rs. 2,00,000/- (Rupees two lacs) within 8 weeks and to report compliance on 9-4-2007. On deposit of the aforesaid amount, the balance amount of duty shall stand waived till the disposal of the appeal. (Dictated and pronounced in open Court).
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2007 (1) TMI 417 - CESTAT, BANGALORE
Demand, confiscation and penalty - Clandestine removal ... ... ... ... ..... The facts, the evidences and the submissions of the Respondent have not been properly brought out by the Adjudicating Authority. The investigation is also not thorough. In these circumstances, we have to set aside the rest of the demands in Annexures II and III. 6.2 emsp Since Shri Mohan Rao was the Director, looking after the routine work of the company, the penalty on him under Rule 209A is justified. However, in the facts and circumstances of the case, the same is reduced as given below. 6.3 emsp The OIO is modified in the following manner - (i) The penalty under Rule 173Q is reduced from Rs. 1,00,000/- to Rs. 7,000/-. (ii) The penalty on Shri Mohan Rao is reduced from Rs. 25,000/- to Rs. 2,000/-. (iii) The confiscation of Plant and Machinery valued at Rs. 7.4 lakhs under Rule 173Q of Central Excise Rules is upheld. However, the Redemption Fine is reduced from Rs. 50,000/- to Rs. 5,000/-. The appeal is disposed of in the above terms. (Pronounced in open Court on 17-1-2007)
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2007 (1) TMI 416 - CESTAT, AHMEDABAD
Refund - Claim admissible on merits but rejected on time bar ... ... ... ... ..... nted. Even if the appeal is decided against the appellant the department having failed to issue notice for recovery of any alleged erroneous refund within the period specified in Section 11B the recovery of any erroneous refund is not feasible. If the appeal is allowed in favour of the appellants then the refund sanctioned gets ratified. The issue, initially was whether the refund have been preferred within the specified time limit. Now the issue has become as to whether the notice for demand was issued within the time prescribed. As far as the department is concerned any decision on this appeal is of no consequence. If the appeal is rejected the matter of eligibility to refund claim of Rs. 75,291/- has to be re-determined for the third time by the Assistant Commissioner and even if it is held not admissible the same may not be recoverable. 6. emsp Therefore, the appeal is allowed so that the two decades old dispute is brought to an end. (Pronounced in the Court on 10-1-2007)
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2007 (1) TMI 415 - CESTAT, KOLKATA
Refund - Judicial discipline - Precedents - Scope of ... ... ... ... ..... sued instruction vide F. No. 202/24/72-CX. 6, dated 6-1-78, in consultation with the Ministry of Law to the effect that un-utilised amount in PLA is refundable to the appellants and relying on this instruction, the appellant submitted that this Bench has already decided such matter in the case of Jay Shree Tea and Industries Ltd. v. Commissioner of Central Excise, Kolkata reported in 2005 (190) E.L.T. 106 (Tri.-Kolkata). 4. emsp On the basis of the above decision, the appellants cannot be denied of justice and cannot be un-equally treated under law. It is judicial descipline that demands that unless that order of this forum is stayed by higher Courts or reversed by any such Court, order of this forum shall prevail and that should be followed unhesitatingly. I am inclined to agree to uphold majesty of law and follow judicial descipline and allow the appeal since the issue is no more res integra. 5. emsp Both the appeals are allowed. (Dictated and pronounced in the open Court.)
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2007 (1) TMI 414 - CESTAT, BANGALORE
Precedent - Exemption ... ... ... ... ..... oner (A) in the impugned order were not appealed by the Revenue and therefore, it has become final. He submits that in such a situation, the appeal becomes infructuous in the light of the Apex Court judgment rendered in the case of Jayaswals Neco Limited v. CCE - 2006 (195) E.L.T. 142 (S.C.) Birla Corporation Ltd. v. CCE - 2005 (186) E.L.T. 266 (S.C.) and IOC Limited v. CCE - 2006 (202) E.L.T. 37 (S.C.). 3. emsp The learned JDR reiterated the grounds of appeal. 4. emsp On our careful consideration, we notice that the Commissioner (A) has followed his own earlier orders which have become final as the Revenue has not appealed against the same. The Commissioner (A) has noted that the issue is covered by the Tribunal ruling rendered in the case of Sree Rayalaseema Alkalies and Allied Chemicals Ltd. v. CCE (supra). There is no ground to interfere with the impugned order, therefore, the appeals and cross-objection are rejected as infructuous. (Pronounced and dictated in open Court)
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2007 (1) TMI 413 - CESTAT, BANGALORE
Fraudulent export/attempt to export ... ... ... ... ..... tement recorded nor evidence against him was collected. Therefore, in absence of any evidence or any finding against the appellant, the appellants cannot be charged under Section 114 of Customs Act on the allegation of abetment and involvement in the fraudulent activities of the importer/exporter M/s. Sweety International Ltd. The above noted citations clearly laid down that there has to be evidence to be placed by the Revenue to discharge the allegation of abetment in terms of Section 114 of Customs Act. As there is no evidence in the present case, the imposition of penalty on the appellant is not justified. The impugned order is set aside by allowing the appeal with consequential relief, if any. rdquo We are of the considered opinion that revenue has failed to establish the case of abatement and collusion against the appellant. Hence, the penalty imposed is required to be set aside. Appeal is allowed with consequential relief, if any. (Pronounced and dictated in open Court)
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2007 (1) TMI 412 - CESTAT, MUMBAI
Cenvat/Modvat - Inputs sent to job work without reversing credit ... ... ... ... ..... at this activity would be covered under the provision of Rule 57F(3), the same is not correct as the inputs themselves have not been processed but have been mixed in a minimal quantity to the Ethyl alcohol which activity will not fall under the procedure prescribed under Rule 57F(3). 2. emsp Learned S.D.R. however agree that if the inputs would have been cleared on payment of duty the job worker would have been entitled to the credit of the same and therefore entire exercise would become revenue neutral. 3. I have considered the submissions. I find that it is not denied that the entire exercise is revenue neutral as once the respondents are required to reverse the credit, the job worker would be entitled to take the credit of the same and would have utilized the same for payment of duty in respect of special denatured spirit cleared by them. Therefore on this ground alone I find no merits in the appeal filed by the Revenue and accordingly dismiss the same. (Dictated in Court)
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2007 (1) TMI 411 - CESTAT, MUMBAI
Appeal - Maintainability of ... ... ... ... ..... nal, rejected the appeal. He has also taken note of the fact that the document to prove the deposit of the amount claimed was actually furnished only on 5-4-2005. 5. emsp In both the orders, the decision on payment of interest has been deferred on the ground that the dispute has not been finally settled. It implies that the issue of payment of interest can be considered after the final order of the Tribunal on Department rsquo s appeal against order dated 4-4-2002 of the Commissioner. 6. emsp As regards the second ground that proof for deposit has not been produced this has to be looked into afresh at the appropriate time. If the show cause notice indicates payment during the course of investigation, then it is not open to the Department that proof of deposit i.e. TR-6 challan was produced only on 5-4-2005. 7. emsp Therefore, I hold that the appeal on this issue is not maintainable and hence, the appeal is rejected with the above observations/direction. (Pronounced in Court.)
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2007 (1) TMI 410 - CESTAT, BANGALORE
Refund - Limitation ... ... ... ... ..... o. 606/2006, dated 17th March, 2006 2006 (206) E.L.T. 303 (T) wherein the Tribunal relying on Anam Electrical Manufacturing Co. case (supra) has held that the refund application even in respect of illegal levy is required to be filed within the period of limitation prescribed under the Act. 4. emsp I have gone through the records of the carefully. The issue is that the appellant paid duty when they were not required to pay while exporting certain goods. However while claiming refund, they did not adhered to the time limit prescribed under Section 27 of the Customs Act. I find that this Tribunal in the Final Order No. 606/2006, dated 17th March, 2006 2006 (206) E.L.T. 303 (T) (supra) has held that even in respect of illegal levy, the refund claim should be filed within the time limit prescribed under Section 11A/27 of the Central Excise Act/Customs Act. By following the ratio of the above decisions, I dismiss the appeal of the appellants. (Pronounced and dictated in the Court)
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