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Showing 221 to 240 of 701 Records
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2005 (3) TMI 609 - CESTAT, MUMBAI
Valuation - Related person ... ... ... ... ..... son and therefore that decision would apply. However, the said Order-in-Original passed by Commissioner of Central Excise, Aurangabad had already been set aside on merits by the CEGAT in SATL rsquo s own case reported at 2002 (149) E.L.T. 1107 (T) 2003 (106) ECR 295 (T). Therefore, the entire basis in the appeal filed by the revenue does not exist. In view of the aforesaid order of the CEGAT in SATL rsquo s case the appeal filed by the Revenue deserves to be rejected, however we are informed that Revenue is in appeal against the above mentioned decision of this Tribunal. Outcome of that has to be amounted. (g) emsp In this view of the matter, these appeals are to be allowed as remand to re-determine, whether these exits a factory gate sale for like goods and thereafter determine the other issues involved which are kept open for both sides to urge in the de novo proceedings. 3.1 emsp The appeals are allowed as Remand for de novo adjudication. (Pronounced in Court on 11-3-2005)
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2005 (3) TMI 608 - CESTAT, MUMBAI
Rectification of mistake ... ... ... ... ..... Ltd. v. CCE, 1999 (112) E.L.T. 34. The Interim Order dated 17-5-2004 in this case, directing the department to finalise the classification and report compliance thereof and its compliance stated to have been reported to the Registry was not placed before the Bench. Non consideration of this Interim Order is not a cause for an error apparent on the face of the record, since non consideration of an Interim Order would not be a cause for an application to be considered under Section 35C(2) of the Central Excise Act, 1944 as in the facts of this case. Moreover, the settled classification consequent to Order dated 17-4-2004 has also been set aside by the Commissioner of Central Excise (Appeals) rsquo order dated 11-4-2004. No appeal appears to have been filed against that order. In this view of the matter, no cause is made out for rectification of mistake application filed by the Revenue and the same is dismissed. 2. emsp Application disposed of accordingly. (Pronounced in Court)
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2005 (3) TMI 607 - CESTAT, CHENNAI
Classifiaction ... ... ... ... ..... process of concentration which involves removal of elements of a solution to make the solute denser or purer. Addition of elements (vitamins and minerals in the instant case) would only have the opposite effect. 5. emsp According to the guidelines issued by tlie Apex Court in O.K. Play (India) Ltd. (supra), the HSN note relied on by the DR has a decisive role in the classification of the product in question and the fact that the sole use of the product declared by the assessee themselves on the product label has also to be taken into account while determining the classification. In terms of these guidelines, we have to conclude that the subject goods is medicament falling under Heading 30.03 of the CETA Schedule as claimed by the Revenue and not a food substitute falling under Heading 21.07 as claimed by the assessee. In the result, we set aside the impugned order and allow this appeal of the Revenue. (Operative portion of the order was pronounced in open Court on 30-3-2005)
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2005 (3) TMI 606 - CESTAT, CHENNAI
Cenvat/Modvat - Order of Commissioner (Appeals) ... ... ... ... ..... es denial of credit which includes incidental matters related thereto. 5. emsp We are not able to subscribe to the view of the appellants that the Commissioner (Appeals) traversed beyond the scope of the notice while directing the lower authorities to check up the exact quantum of credit admissible. Such directions are only incidental to the main issue. We observe in several cases, while the Tribunal grants relief in the matter of refund of excise duty, direct the lower authorities to check whether the bar of unjust enrichment is crossed or not even though such an issue was not specifically mentioned in the show cause notice seeking to reject the refund. We observe that it is in the interest of justice to give each one its due. There is no harm at all to check up whether the quantum of credit is correctly arrived at or not. It is not that the Commissioner (Appeals) is directing something which is impracticable. The appeals are rejected. (Dictated and pronounced in open Court)
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2005 (3) TMI 605 - CESTAT, NEW DELHI
Penalty - Possession of smuggled counterfeit Indian currency ... ... ... ... ..... e contention of the appellant is that copy of statements were not supplied to the appellant. I find that with the show cause notice all the statements was supplied to the appellants and before the adjudicating authority no request was made for supply of these statements. Further, I find that in the bail order whereby the bail was granted by the Session Judge the Public Prosecutor relied upon these statements. In these circumstances, I find no merit in the contention of the appellant that these statements were in supply to the appellants as the appellants were aware that these are smuggled counterfeit currency and they had purchased these notes on payment. Therefore, in view of the fact that the appellants are dealing in the smuggled counterfeit Indian currency which is directly causing injury to the Indian economy and the security of the State. Therefore, I find no infirmity in the impugned order. The appeals are dismissed. (Dictated and pronounced in open Court on 16-3-2005)
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2005 (3) TMI 604 - CESTAT, BANGALORE
Re-adjudication - Penalty enhancement ... ... ... ... ..... nhancing of penalties in respect of M/s. Bangalore Mono Filaments and keeping the penalty in respect of the appellants at par is totally not as per law. This submission is required to be accepted. The impugned order enhancing the penalty to Rs. 25,000/- is not in terms of law. The penalty in respect of both the appellants has to be fixed at Rs. 1,000/- only in terms of Order No. 140/2000-C.E., dated 12-5-2000 passed by the Commissioner (Appeals) as in the case of M/s. Bangalore Mono Filaments. The impugned order is modified to the extent that the penalty in respect of both the appellants is reduced to Rs. 1,000/- each and the appeals are disposed of accordingly. At this stage, the learned Counsel submits that Rs. 10,000/- is under deposit and they should get back the refund of Rs. 9,000/- each in terms of this order. The said amount of Rs. 9,000/- shall be reimbursed to the appellants in terms of this order. Appeals allowed accordingly. (Pronounced and dictated in open Court)
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2005 (3) TMI 603 - CESTAT, BANGALORE
... ... ... ... ..... nded period as the department was fully aware of the supply of software. 5. emsp The learned SDR reiterated the findings in the orders of the original authority. 6. emsp We have gone through the rival contentions. It is a fact that the appellants supply both hardware and software. As far as software is concerned it is a distinct commercial commodity. It is also classifiable under 8524.20 of Central Excise Tariff Act. The decision of the Hon rsquo ble Apex Court in the case of CCE v. Acer India Ltd. cited supra is squarely applicable to the present case and therefore, for brevity rsquo s sake, we are not discussing the issue elaborately. Hence the value of software both application and systems is not includible in the value of DCS. Moreover, there is absolutely no justification for invoking the extended period and also imposing penalty. In the circumstances of the case the OIO has no merits. We allow the appeal with consequential relief. (Pronounced in open Court on 31-3-2005)
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2005 (3) TMI 602 - CESTAT, CHENNAI
Appeal - Additional ground - Valuation ... ... ... ... ..... a notional profit was liable to be added to the assessable value of the goods manufactured by TNEB and cleared for captive use. It is settled law that notional profit requires to be added to the assessable value of such goods under Rule 6(b) of the Central Excise Valuation Rules. What remains to be decided is whether 10 of the cost of production of the goods has to be added to the assessable value of the subject goods. In this context, we have the advantage of following the norms laid down by the Tribunal in the case of APSEB (supra), wherein the profit margin of 2 was considered to be reasonable. Accordingly, we fix the profit margin includible in the assessable value of the goods, at 2 of the cost of production of the goods. The impugned order will stand modified to this extent. The original authority shall re-quantify the duty demand accordingly. 5. emsp The appeal is disposed of in the above terms. (Operative portion of the order was pronounced in open Court on 31-3-2005)
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2005 (3) TMI 601 - CESTAT, MUMBAI
Confiscation of goods meant for improper export - Redemption fine - Quantum of ... ... ... ... ..... venue itself is that the value of the goods is not more than Rs. 1.25 lakhs, therefore, the redemption fine of Rs. 5.00 lakhs and Rs. 4.00 lakhs imposed cannot be upheld and the same is required to be reduced. We would therefore consider, in the facts of this case, a redemption of Rs. 50,000/- and Rs 40,000/-, instead of Rs. 5.00 lakhs and Rs 4.00 lakhs respectively as imposed, to be sufficient. 6. emsp Since the goods are liable to confiscation under Section 113(i), penalty under Section 114 in the facts of this case is required to be upheld. We would however reduce the penalties on the assessee/EOU from Rs. 2.00 lakhs each as imposed to Rs. 25,000/- each and on the Directors from Rs. 1.00 lakhs each to Rs. 10,000/- each, keeping in mind the reduction in the redemption fine and the fact that duties of excise which was sought to be evaded by these appellants have been paid immediately on detection of this case. 7. emsp Appeals disposed of in above terms. (Pronounced in Court)
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2005 (3) TMI 600 - CESTAT, BANGALORE
... ... ... ... ..... aving claimed insurance. The ground on which appeal has been allowed by the Commissioner (Appeals) is that Section 72(1)(d) of the Customs Act is not applicable to the facts of the case as the said section applies to goods which are not accounted for in the warehouse. The facts of the case clearly disclose that the goods had been properly accounted in the warehouse and while removal to the domestic area, due to accident, a portion of tiles were damaged. Therefore, the grounds on which Revenue has been proceeded, as held by the Commissioner, is that the Section 72(1)(d) itself is invocable. On our careful consideration, we find that the Commissioner (Appeals) has rightly noted that Section 72((1)(d) of the Customs Act is not applicable to the facts of the present case and therefore demand raised in terms of the said section is not sustainable for the reasons given by the Commissioner. We uphold the order by rejecting this Revenue appeal. (Pronounced and dictated in open Court)
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2005 (3) TMI 599 - CESTAT, NEW DELHI
Redemption fine and penalty - Penalty ... ... ... ... ..... acts and circumstances of the case, we reduce the same to Rs. 15,000/-. 5. emsp Penalty on Vishnu Kumar, Sorting Assistant at Speed Post Centre is set aside for the reason that in his statement recorded on 21-1-2003, he has only stated that he informed Kishori Lal about the arrival of the parcels imported by Abhishek Electronics, due to the friendship between him and Kishori Lal. On 11-10-2002 and 12-10-2002, Kishori Lal enquired about the arrival of the parcels and he informed Kishori Lal that the parcels have arrived and the statement of Kishori Lal does not implicate Vishnu Kumar in any way as he has only stated that he knew Vishnu Kumar since 1980 and he never disclosed the contents of the parcels imported by Abhishek Electronics to Vishnu Kumar. 6. emsp In the result, the appeals of Abhishek Electronics, Kishori Lal and Rajesh Kumar are partly allowed, while the appeal of Vishnu Kumar is allowed in toto. (Operative part of the order announced in open court on 28-3-2005).
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2005 (3) TMI 598 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... this ldquo Request rdquo was made vide letter dated 10-3-2005 exhibiting the civil side of a Custom Officer, however it was not disclosed, that the very same officer on 9-3-2005 vide an order of even number had already issued an order of de novo or under Section 142 of the Customs Act, 1962 with copies to all Customs finalisation to start effecting the recovery which was the issue in the request letter on 10-3-2005. Restraining to use any harsher words for such a conduct, on part of the officer and observing only lsquo Duplicity in Conduct rsquo On our part we would set aside the detention Notice No. 5/5-306/94-CC, dated 9-3-2005 passed under Section 142 of the Customs Act, 1962. It is felt the same has to be brought to the knowledge of his Commissioner for such action on this officer, as is deemed necessary, to keep up the image of a Customs Officer. 3. emsp Both sides at liberty to file an early hearing application. Application disposed in above terms. (Pronounced in Court)
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2005 (3) TMI 597 - CESTAT, NEW DELHI
... ... ... ... ..... enhanced after taking into consideration the value of the complete photocopier machine. Therefore, we find merit in the arguments of the appellant that parts cannot be compared with another machine. The value was enhanced on the opinion of Appraising Group in the second case. There was no evidence on record to show that similar goods were being imported at higher value. In these circumstances, we find that the order where the value was enhanced, are not sustainable and set aside. 8. emsp As the goods were liable for confiscation, and we set aside the order whereby the value was enhanced. Therefore, the redemption fine in Appeal No. C/218/04-NB(A) is reduced to Rs. 78,000/- and penalty is reduced to Rs. 40,000/-. In Appeal No. C/453/04-NB(A), the redemption fine is reduced to Rs. 50,000/- and penalty is reduced to Rs. 30,000/- and in Appeal No. 454/04-NB(A), the redemption fine is reduced to Rs. 38,000/- and penalty is reduced to Rs. 20,000/-. Order dictated in the open Court.
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2005 (3) TMI 596 - CESTAT, NEW DELHI
SSI Exemption vis-a-vis Cenvat/Modvat - Option ... ... ... ... ..... ion from payment of duty in respect of the goods manufactured in their Kirti Nagar unit. This was the view held by the Tribunal in the case of Munjal Gas (supra) wherein it has been held that ldquo the words ldquo by a manufacturer, from one or more factories rdquo have been mentioned in Notification No. 1/93 C.E., for the purpose of computing the value of clearances in the preceding financial year. These words do not debar respondents from availing of exemption from payment of duty in one unit while availing of Modvat credit in the other unit. rdquo We also observe that in the said decision of Munjal Gases, Tribunal has also noticed that the issue had been decided earlier vide Final Order No. 500-501/99-C, dated 21-6-99 in the matter of M/s. Munjal Gases themselves and no order or decision reversing the said decision has been brought on record by the Revenue. Thus, following the earlier decision, we set aside the impugned order and allow the Appeal. (Pronounced in the Court)
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2005 (3) TMI 595 - CESTAT, NEW DELHI
Demand - Consulting engineer ... ... ... ... ..... e Act, 1994, the consulting engineer means any professionally qualified engineer or engineering firm who either directly or indirectly, renders any advice, consultancy or technical assistance in any manner to a client in one or more disciplines of engineering. No doubt, that the appellant in their balance sheet treated this amount as design and development charges. However, from the facts of the case, we find that the appellants were charging for the design and development of tooling, which were used in the manufacture of the rubber components of the motor vehicle. The rubber components so manufactured were cleared on the payment of excise duty and the value of rubber components are also included to the cost of these tooling. In these circumstances, we find that the demand confirming in respect of service tax treating the appellant as consulting engineering is not sustainable and set aside the impugned order. The appeal is allowed. (Pronounced and dictated in the open Court).
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2005 (3) TMI 594 - CESTAT, BANGALORE
Stay/Dispensation of pre-deposit ... ... ... ... ..... se in the matter. He submits that the appellants have a strong case on merits and seeks full waiver of pre-deposit in the matter. 2. emsp The learned SDR defends the order and submits that the type of service rendered by the appellants can be brought within the ambit of Management Services and Service Tax. He submits that the appellants have drawn debit notes for certain activities carried out by them and therefore, he justifies the action of the Department. 3. emsp On a careful consideration of the submissions made by both sides, we find that the appellants have made out a strong case on merits. In terms of the arguments put forward by the learned Chartered Accountant and in the absence of Revenue having established consultant-client relationship, the stay application is allowed unconditionally, by granting waiver of pre-deposit and staying its recovery till the disposal of the appeal. The appeal to come up for hearing in its turn. (Pronounced and dictated in the open Court)
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2005 (3) TMI 593 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... nsel has pointed out that in certain years the appellants had also treated more than 40 free patients. 2. emsp It is not clear from the notification, as to whether the percentage is to be worked out on an annual basis or on overall basis. If latter is the case, the years subsequent to 1999 would also be relevant. In any case, the appellants are very close to the percentage stipulated in the above said notification. Under these circumstances, the requirement of pre-deposit is waived and recovery stayed. 3. emsp The appeal to come up for hearing on 4th July, 2005. (Dictated and pronounced in the open court on 18-3-2005).
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2005 (3) TMI 592 - CESTAT, NEW DELHI
Detention during stay of recovery ... ... ... ... ..... detention memo dated 15-2-2005 detaining the appellants rsquo goods for the recovery of this amount. 4. emsp Needless to say, this action is totally erroneous on the part of the Department. When the stay application was pending before this Tribunal, the authorities should not have taken any recovery proceedings. In view of this, the detention memo is quashed and the appellants will be at liberty to deal with these goods, as per law. 5. emsp The matter to come up for regular hearing on 10-6-2005. (Dictated and pronounced in the open court on 18-3-2005).
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2005 (3) TMI 591 - CESTAT, MUMBAI
... ... ... ... ..... toms Act, if the owner of any imported goods relinquish his title to the goods, he is not liable to pay any duty thereon. Section 114(A) makes it clear that penalty under this provision is leviable only where the duty of customs or interest has been short levied or has not been levied or where duty or interest has been erroneously refunded due to collusion or any wilful misstatement or suppression etc. and not when title of the goods has been relinquished by the party. Therefore, imposition of penalty under this provision on the appellants company is illegal and liable to be set aside. Accordingly, penalty of Rs. 6,79,360/- is set aside with consequential relief of refund of an amount equivalent to 25 , which has been deposited. 9. emsp However, imposition of penalty on the Managing Director under Section 112(a) and (b) of the Customs Act, 1962 is upheld. 10. emsp Accordingly, company appeal is allowed. Appeal filed by the Managing Director is dismissed. (Pronounced in Court)
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2005 (3) TMI 590 - CESTAT, CHENNAI
Demand - Limitation - Relevant date - Penalty - Imposition of ... ... ... ... ..... ing the period of five year. It is also not the case of the Department that all the impugned goods were removed in December, 1998. 8. emsp We therefore hold that the show cause notice for demanding the Central Excise duty issued is sustainable only for the period June, 1998 to December, 1998. We, therefore, set aside the impugned order and remand the matter to the jurisdictional Adjudicating Authority to reconsider the matter again on merit after considering all the submissions of the Appellants and if any duty is payable, the same has to be confined to for the period from June, 1998 to December, 1998. The Commissioner is also at liberty to impose penalty for the said period if the duty is finally demanded by him. Shri Easwaramurthy is only the Deputy Manager of the Store of the assessee and authorised signatory and as such no penalty is imposable on him under the provisions of Central Excise Rules. We therefore, set aside the penalty imposed on him. (Pronounced in the Court)
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