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Case Laws
Showing 221 to 240 of 781 Records
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2007 (3) TMI 609 - CESTAT, BANGALORE
Sugar, sugar confectionery - Classification of goods - Residuary heading ... ... ... ... ..... ly 99 . We also find that the Board rsquo s Circular cited by the learned Advocate classifies Glucose D under Chapter 17. Therefore, there is no reason as to why the impugned product, which is very similar to Glucose D, should be classified under Chapter 21. This point has not been examined by the lower authorities. Further, Chapter Heading 21.06 is a residuary heading. It should be resorted to if the impugned products cannot be classified elsewhere. Further, on going through Note 6 of Chapter 21, which gives the examples of the products included in 21.06, it is evident that the impugned product FUNDA cannot come within the category of Misthans, Mithai, Namkeens, Mixtures, Bhujia, Chabena, etc. In other words, by applying the Principle of ejusdem generis, we hold that the impugned product cannot come under Chapter heading 21.06. In the result, we allow the appeal with consequential relief. (Operative portion of this Order was pronounced in open Court on conclusion of hearing)
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2007 (3) TMI 608 - CESTAT, AHMEDABAD
Demand - Customs - Import against advance licence ... ... ... ... ..... appellant UCL has fulfilled all the export obligations then there would be no violation or infringement for demand of the duty and other consequential actions. We are of the view that, only for this limited issue the matter has to be remanded back to the original authority. 9. emsp Accordingly, in the facts and circumstances of the case, holding the appellants have not violated the condition No. (vii) of notification No. 43/97-Cus. as amended from time to time, we allow the appeal by way of remand to the original adjudicating authority to look into the claims of the appellants that they have utilized the duty free imported coal as per SION in the manufacture of the clinker/cement exported by them, in totality. The adjudicating authority will afford a reasonable opportunity of personal hearing before deciding the issue and the appellants will be at liberty to marshal all the evidences in their support. Appeal allowed as indicated in above paragraphs. (Pronounced on 15-3-2007)
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2007 (3) TMI 607 - CESTAT, NEW DELHI
Confiscation and penalty - Clandestine manufacture ... ... ... ... ..... lant are not applicable herein. In the case of Seksaria Biswan Sugar Factory Limited (supra), it is held by the Tribunal that as per ISI specification 10 is always provided for foam in working out in volume of tank for storage of molasses. In the present case, the authorities below already provided 20 for foam. It is revealed from the decision of the Tribunal in the case of Kisan Sahkari Chini Mills by final order dated 8-2-2007, it has been held that dip method is a method duly recognized in the Standard of Weights and Measures (General) Rules, 1987 in the context of measuring the quantity of liquid, it is difficult to accept the contention raised by the appellant that dip method for measurement of molasses stored in the steel tanks is a faulty method. So, there is no substance in the submission of the learned Advocate at this regard. Hence, I do not find any merit in the present appeal and accordingly the appeal is rejected. (Order pronounced and dictated in the open Court)
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2007 (3) TMI 606 - CESTAT, MUMBAI
Cenvat/Modvat - Furnace oil - Refund - Unjust enrichment - Precedent ... ... ... ... ..... ent of duty for further utilization in manufacture of final product which are cleared on payment of duty by principle manufacturer not hit by the provisions of Rule 57C of erstwhile C. Ex Rules, 1944. In this view of the matter and finding the definition of inputs as given in Cenvat Credit Rules, 2002 would lead to the conclusion that the appellant was eligible and the reversal insisted by the department was not called for. Since sub-rule (2) of Rule 6 of Cenvat Credit Rules, 2002 specifically exclude credit on fuel from reversal. There is no finding by the Commissioner (Appeals) on the question of unjust enrichment following the decision in the case of CCE v. Dura Syntex Ltd. - principle of unjust enrichment would not be applicable to refund related to input credit. The input credit is required to be restored in the RG 23A Pt. 11. Accounts after setting aside the order impugned. 6. emsp Accordingly, the appeal is disposed of in above terms. (Pronounced in Court on 30-3-2007)
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2007 (3) TMI 605 - CESTAT, AHMEDABAD
Exemption - World Bank funded project ... ... ... ... ..... rial procured duty free are required and used for the said project. It should be understood that the appellants may supply goods not only for the project, which is eligible for exemption but also to others who are not availing the said exemption. There is no rational to issue the certificate in the name of the supplier. Basically, the Notification is a kind of end-use notification and that is meant for use in the work funded by the World Bank. There is also no stipulation in the notifications that the certificate by the project implementing authority should be in the names of suppliers of the materials. 7. emsp The ratio of various judgments relied by the learned Advocate justify the extension of the benefit of the Notification as long as the intended purpose namely the use of the product for the World Bank funded project is complied with. 8. emsp In view of the above, the appeal deserves to be allowed and accordingly, the appeal is allowed. (Pronounced in Court on 29-3-2007)
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2007 (3) TMI 604 - CESTAT, NEW DELHI
Cenvat/Modvat - Capital goods ... ... ... ... ..... to be followed since they are contrary to the ruling contained in the judgement of the Larger Bench. It is also being pointed out that rejection of a reference application is no ruling on the issue in dispute. The learned SDR would also point out that all these judgments were considered by the Tribunal in its final order Nos. 1743-1744/06 - SM (BR) in the case of M/s J.K. Cement Works 2007 (6) S.T.R. 60 (T) (Excise Appeal Nos. 99 and 109 of 2005 - SM Branch) and it was held that the decision of the Larger Bench is required to be followed by Division and Single Benches of the Tribunal. 6. emsp It is well-settled that the decision of a Larger Bench is binding on other Benches of the Tribunal and authorities subordinate to it. Therefore, the impugned order which was passed by the Commissioner (Appeals) by following the Larger Bench decision in the Jaypee Rewa Plant case, is required to be upheld. 7. emsp In the result, the appeal fails and is rejected. (Pronounced on 29-3-2007)
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2007 (3) TMI 603 - CESTAT, BANGALORE
Confiscation - Misdeclaration - Speaking order ... ... ... ... ..... However, he does not oppose the prayer for remanding the case so that a detailed order can be passed after issue of show cause notice. 3. emsp We have carefully considered the submissions made by both sides and find that the order is not a speaking order. There are no reasons given to hold that there is mis-declaration in the matter. The appellants have explained the genuine mistake while sending the documents. There is reference to it in brief facts of the case of the impugned order. There appears to be contradiction in the order also. The order is not a speaking order therefore, the same is set aside and matter remanded to the Commissioner for taking a view for release of the goods on bond and deciding the case within one month from the receipt of this order after putting the appellants to notice. Thus the appeal is allowed by remand to the Commissioner for de novo consideration. Registry to issue this order out of turn expeditiously. (Pronounced and dictated in open court)
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2007 (3) TMI 602 - CESTAT, NEW DELHI
Refund - Unjust enrichment - Proof of ... ... ... ... ..... duty during the period 5-12-2001 to 28-2-2002. They have produced the credit notes raised to the customers. Apart from that, they have not produced any supporting evidence in support of their contention that the excess amount of duty incidence was not passed to other persons. In the case of Ferro Alloys (Supra), relied upon by the learned Counsel, the respondent produced the certificate of Chartered Accountant and letter showing that the incidence of excise duty were not passed on to buyer and the buyer admitted that the fact neither they paid anything for excess duty nor taken Modvat credit of duty paid by the respondent. In the present case, no evidence has been brought on record to the fact that the incidence of duty had not borne by their buyer. The letter of their customer has no relevancy as the same was issued before the clearance of the goods. Accordingly, I do not find any merit in the appeal and the same is rejected. (Order dictated and pronounced in the open Court)
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2007 (3) TMI 601 - CESTAT, BANGALORE
Cenvat/Modvat - Inputs ... ... ... ... ..... dismissed and party rsquo s appeals on this point are allowed. 4.2 emsp In so far as the appeals of RINL is concerned, the another issue besides the claim of benefit of Cenvat credit on welding electrodes is pertaining to eligibility of credit on inputs used for manufacture of capital goods, this issue is covered by the Explanation 2 to Rule 2 of Cenvat Credit Rules 2002 and the authorities have not clearly seen this point. In so far as the credit availed on capital goods is concerned, the same is also covered, by Chapter Headings specified in Rule 2(b)(i) of Cenvat Credit Rules 2002. So far as credit on gases are concerned, the issue is covered by the Board rsquo s Circular No. 31/90-CX.8 dated 31-5-1990 and two judgments cited by the learned Counsel on this point. The appeals of RINL are also allowed. In the result, the revenue appeals are dismissed and parties rsquo appeals are allowed. (Operative portion of this Order was pronounced in open Court on conclusion of hearing)
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2007 (3) TMI 600 - CESTAT, KOLKATA
Appeal by Department - Maintainability of ... ... ... ... ..... the said order. As such, I am of the view that the said authorization is invalid in the eyes of law and shows total non-application of mind. 3. emsp Secondly, in this case, shortage of inputs was detected on 26-6-04 and promptly, the respondents have paid the duty on the said shortage on the very same day. 4. emsp For the reasons stated above, I am of the view that the appeal is not maintainable and the impugned order does not call for any interference. Hence the appeal filed by the Revenue is rejected. (Dictated and pronounced in the open Court)
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2007 (3) TMI 599 - CESTAT, KOLKATA
Appeal to Appellate Tribunal - Limitation - Delay in filing - Condonation of ... ... ... ... ..... ugned order was lying in the factory where it was found .The appellants, were asked to file an affidavit as to the truth of the averment made in the application for COD. However, no such affidavit has been filed by the appellants till date. 3. emsp As such, we find that the delay in filing the appeal before this Tribunal has not been satisfactorily explained. Consequently, we reject the miscellaneous application for COD along with appeal and the stay petition. (Dictated and pronounced in the open Court)
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2007 (3) TMI 598 - CESTAT, CHENNAI
Appeal - Pre-deposit amount in one case - Strictures against Department ... ... ... ... ..... epartment. Opposing this plea, learned Counsel submits that the appellants had won before the Tribunal in the case in which the aforesaid deposit of Rs. 2 crores has been made and that they are otherwise eligible for refund. 2. emsp We would like to express our displeasure at the way in which our stay order is being looked at by the department. We had noted the very fact, which in the present application the department points out, at the time of passing the above stay order and in exercise of our discretion, we directed the department to retain the amount with them (notwithstanding any claim for refund) till final disposal of the present appeal. If the department is not agreeable for this, let them refund the amount to the party so that the party can deposit the same under Section 35F for the purpose of this case. In our stay order, we have only chosen the easier mode. 3. emsp The present application is rejected as bereft of bona fides. (Dictated and pronounced in open Court)
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2007 (3) TMI 597 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
Settlement of case - Demand - Cum-duty price ... ... ... ... ..... interest in excess of 10 per annum as aforementioned. Revenue is directed to calculate and intimate the amount of interest, as above, to the applicant within 15 days of the receipt of this Order. The applicant shall pay interest within next 15 days of the receipt of such intimation and report compliance both to the Commission and Revenue. (c) In view of facts and circumstances, full immunities are allowed to the applicant from the penalty and prosecution under the Central Excise Act and the Rules framed thereunder, as applicable, so far as this case is concerned. 8. emsp The aforesaid immunities are granted under Section 32K(1), This Order shall be void and the immunities withdrawn if the Commission finds, at any time, that any material particular to the settlement was concealed or false evidence was given or this Order was obtained by fraud or misrepresentation of facts. Attention is invited to sub-section (9) of Section 32F and sub-sections (2) and (3) of Section 32K ibid.
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2007 (3) TMI 596 - CESTAT, CHENNAI
Confiscation and penalty - Smuggled goods ... ... ... ... ..... government began allowing import of gold five Kgs per passenger returning to India after a continuous stay of one year abroad and the duty payable was only Rs. 25/10 gms. These were raised to 10 Kgs and Rs. 400/10 gms respectively in 1999. Gold became importable on payment of duty at a rate comparable to most other commodities. Therefore illicit/import of gold did not need to be visited with a penalty of such severity as absolute confiscation and heavy personal penalties. We find that this Tribunal has been allowing the persons from whom foreign gold was seized and confiscated to redeem the same on payment of a reasonable redemption fine. In the instant case we find that the penalties imposed need to be reduced to reasonable levels and the articles confiscated should be allowed to be redeemed by the persons from whom they had been seized or their owner rsquo s. We, accordingly, allow these appeals by way of remand. (Operative portion pronounced in the open Court on 17-3-2007)
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2007 (3) TMI 595 - CESTAT, AHMEDABAD
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... ecifically dispatched to the job worker, they received the duty paying documents and based on the same they have taken stock details and credit particulars in RG-23A, Part I but, did not utilize them till the materials were received in the factory after processing by the job worker. Learned Advocate also admits that the goods after processing has been received after 9 months but, they have received the duty paying documents well within the prescribed time limit and taken credit in RG-23A, Part I and only utilization was delayed till receipt of the processed material. We find that the applicant has strong prima facie case in their favour in the light of favourable instructions of the Board referred above, and accordingly we waive the pre-deposit of the entire duty amount and stay recovery thereof till the appeal is disposed of. 3. emsp Stay application is disposed of accordingly. Appeal will come up for hearing in due course on its turn. (Dictated and pronounced in open Court)
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2007 (3) TMI 594 - CESTAT, BANGALORE
Appeal - Limitation - Delay of 325 days in filing appeal ... ... ... ... ..... ent Pleader and stopped representing the appellant. Due to his non-appearance, the case was decided ex parte. The plea of the applicants is not supported by any affidavit by both Mr. Ratna Singh and Mr. Ajay despite three opportunities granted in the matter. The applicants have also not filed any affidavit and explained as to why they did not pursue the matter. They have also not filed any time chart. Therefore, there is no ground to condone the delay of 325 days. The delay is enormous and negligence is apparent on record. The reasons given are not sufficient to condone the delay. Therefore, the COD applications are rejected and as a consequence, the appeals are also rejected. (Pronounced and dictated in open Court)
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2007 (3) TMI 593 - CESTAT, CHENNAI
Production capacity based duty - Annual capacity of production - Penalty - Mandatory penalty ... ... ... ... ..... osed. Ld. Commissioner ought to have examined the facts and circumstances of the case and determined a reasonable amount of penalty to be imposed on the assessee. It appears to us that, all throughout, the litigation between the department and the assessee was contentious, wherein both sides locked horns with rival interpretations of the provisions of Rule 96ZP(3) as also of the provisions of Annual Capacity Determination Rules, 1997. In this scenario, it would be incorrect to hold that the assessee was conducting themselves with mala fide intent to evade payment of duty. In our considered view, NIL penalty would be reasonable in the aforesaid facts and circumstances. However, the assessee is required to pay interest on the amounts of duty belatedly paid, for the period of delay, under Rule 96ZP(3). The Commissioner rsquo s order impugned in appeal No. 508/2002 will stand modified to this effect. The appeal is, accordingly, disposed of. (Dictated and pronounced in open court)
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2007 (3) TMI 592 - CESTAT, MUMBAI
Cenvat/Modvat ... ... ... ... ..... Pune-II v. Gadhinglaj Tal SSK Ltd. vide Order No. A/1021/05/WZB/C-II dated 9-8-2005, when the appeal filed by the Revenue was rejected. The said order stands accepted by the Revenue, as is evident from Commissioner rsquo s letter dated 4-10-2005 addressed to the Chief Commissioner, placed on record by the ld. Advocate appearing for the respondent. I also find that the above, Tribunal decisions stands followed in a number of identically placed the matters. 2. emsp However, at this stage I find that the Revenue rsquo s appeal in identical matter in respect of the same respondent stands decided against them by the Tribunal rsquo s Order No. A/1316/C-IV/WZB/MUM/SMB dated 18-8-2006 (sic) (11-8-2006) 2006 (206) E.L.T. 1089 (Tribunal) . Inasmuch as, there are two views of the Tribunal, I would like the matter to resolved by the Larger Bench for which purposes, Registry is directed to place paper before the Hon rsquo ble President for constitution of Larger Bench. (Dictated in Court)
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2007 (3) TMI 591 - CESTAT, MUMBAI
Refund claim - Limitation ... ... ... ... ..... 16A(4) of Drawback Rules. Secondly, it is not a question of refund of deposit made by the appellant during investigation. Such deposit made by them stands confirmed when an order was passed by the adjudicating authority on 31-10-2000 confirming the demand and appropriating the amount already deposited by the appellant. As such, the duty so deposited by them during investigating stands confirmed with the passing of the said order with no appeal there against. The appellants a re-entitled to file the refund claim, even when the order confirming recovery of Drawback is not challenged before higher appellate forum, in view of the specific provisions of Rule 16A, provided, the claim is made within the time period mentioned therein. Inasmuch as, the claim was made after the expiry of such period provided under law, the same has been rightly rejected by the authorities below. Accordingly, no merits are found in the appeal and the same is rejected. (Pronounced in Court on 14-3-2007)
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2007 (3) TMI 590 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... analogous to that of M/s. Himalaya Drug Company (supra). Learned SDR has relied on the Tribunal rsquo s decision in the cases of Commissioner of Central Excise, Mumbai v. Godrej Industries Ltd. 2006 (200) E.L.T. 348 (Tri.-Mumbai) and G.S. Enterprises v. Commissioner of Central Excise, Jaipur 2004 (172) E.L.T. 31 (Tri.-Del.) . But in each of these cases, the goods in question was a single item manufactured and cleared by the assessee, under job work contract, to their principal manufacturer, who marketed the same as free items along with their own product in a single pack. The facts of the cases cited by learned SDR are apparently different from those of the instant case. 4. emsp Having found prima facie case for the appellants, we grant waiver of pre-deposit and stay of recovery in respect of the duty and penalty amounts. Having regard to the high stake involved in the case, the appeal is directed to be posted to 13-6-2007 for hearing. (Dictated and pronounced in open Court)
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