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Showing 241 to 260 of 623 Records

• 2007 (1) TMI 409 - CESTAT, MUMBAI
  

  Interest - Delayed duty payment before issuance of show cause notice

  
  
  ... ...
  ... ... ..... he duty in terms of sub-section 2B of Section 11A. The said sub-section 2B of Section 11A is to the effect that where the assessee pay the amount of duty before service of notice on him and informs the Central Excise officer about the payment no notice shall be served upon him in respect of duty so paid. As such, it becomes clear that even where the duty was paid by the assessee and no show cause notice is required to be served upon him, his liability to pay interest arises in terms of the provision of Section 11AB. It is further noted that the Larger Bench decision in the case of Machino Montell is of no help to the appellant inasmuch as the same was reversed by the Hon rsquo ble Punjab and Haryana High Court in the case of Commissioner of Central Excise, Delhi-III v. Machino Montell (I) Ltd. 2006 (202) E.L.T. 398 (P and H) 2006 (4) S.T.R. 177 (P and H) . 3. emsp In view of above decision, I find no merits in the appeal and reject the same. (Pronounced in Court on 24-1-2007)

  ---

• 2007 (1) TMI 408 - CESTAT, MUMBAI
  

  Refund - Limitation

  
  
  ... ...
  ... ... ..... ed by the appellant during the course of investigation and as such have to be considered as deposits. The part of the amount so deposited has not been found by the Commissioner to be payable. As such, the appellants are entitled to the excess amount deposits by them. The law on the point that such deposits are not hit by the barred by limitation stands decided by a number of precedent decisions of the Tribunal. Reference in this regard may be made to Tribunal rsquo s decision in the case of Suri Industries v. Commissioner of Central Excise, Bangalore 2001 (132) E.L.T. 480 (Tri.-Bang.) as also to the Tribunal rsquo s decision in the case of Prempreet Textile Industries Ltd. v. Commissioner of Central Excise, Surat 2003 (158) E.L.T. 767 (Tri.) . As such, the order of the authorities below that the refund is hit by barred of limitation cannot be sustained. The same is accordingly set aside and appeal allowed with consequential relief in accordance with law. (Pronounced in Court)

  ---

• 2007 (1) TMI 407 - CESTAT, CHENNAI
  

  Appeal to Commissioner (Appeals) - Jurisdiction - Appealable order

  
  
  ... ...
  ... ... ..... bsequent to the period covered by Order-in-Original dated 28-10-1987 of the Principal Collector. Either of these decisions of the Assistant Collector was appealable under the Central Excises and Salt Act, 1944. Hence learned Collector (Appeals) should have assumed jurisdiction and rendered a decision on merits on the issues raised by the party. We have arrived at this conclusion after hearing both sides and considering their submissions. 4. emsp In the result, the impugned order is set aside and the case is remanded to the jurisdictional Commissioner of Central Excise (Appeals) for a reasoned order on merits in the appeal filed by the assessee against the Assistant Collector rsquo s decision communicated in letter dated 7-3-1988. Needless to say that the assessee shall be given a reasonable opportunity of being heard by learned Commissioner (Appeals) before passing final order. 5. emsp The present appeal stands allowed by way of remand. (Dictated and pronounced in open Court)

  ---

• 2007 (1) TMI 406 - CESTAT, KOLKATA
  

  Appellate orders

  
  
  ... ...
  ... ... ..... iation of the discrepancy of the stock, which was the subject matter of the Order-in-Original, were the statutory records maintained and reliable piece of evidence. If that is not so, different conclusion may be drawn and the appeal be re-disposed accordingly. 5. emsp Before parting with the matter, it is also necessary to state that when an impugned Order does not sustain in the eyes of law, the ultimate conclusion should be that the impugned Order, ipso-facto, gets set aside having no legs to stand. Such aspect may be looked into while re-disposing the appeal presently set aside to the file of the learned First Appellate Authority. In the result, the Appellate Order is set aside with the aforesaid directions for re-doing. 6. emsp Against the aforesaid appeal, a Cross Objection was filed by the assessee/respondent company supporting the First Appellate Order. When no different grounds were taken in Cross Objection, the same is hereby dismissed. (Pronounced in the open court)

  ---

• 2007 (1) TMI 405 - CESTAT, MUMBAI
  

  Penalty - Imposition of

  
  
  ... ...
  ... ... ..... observing that the entire duty was paid by the assessee before the issuance of the show cause notice. The said order is impugned before us. 3. emsp After hearing both sides, I find that the Larger Bench of the Tribunal in the case of Piaggio Greaves Vehicles Ltd. v. CCE, Pune, 2001 (127) E.L.T. 614 (Tri.-LB) held that when the credit was availed by making entries in RG-23A register and the same was not utilized and was reversed by the assessee at the insistence of the revenue, there is no justification for imposition of penalty. The appellant submits that though the credit was availed but the same was not utilized by them and was lying unutilized in the records, imposition of penalty was not justified. 4. emsp In view of the above factual position read with the ratio of the Larger Bench rsquo s decision referred supra, I agree with the respondents that this is not a case for imposing a penalty upon them. The revenue rsquo s appeal is accordingly rejected. (Dictated in Court)

  ---

• 2007 (1) TMI 404 - CESTAT, MUMBAI
  

  Appeal to Commissioner (Appeals) - Cross-objection

  
  
  ... ...
  ... ... ..... d in the prescribed manner against any part of the order appealed against and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3) of Section 35B. rsquo rsquo Section 35B(4) of the Central Excise Act is therefore applicable to appeals filed before the Tribunal and does not apply to appeals filed before Commissioner (Appeals). The CEGAT Procedure Rules 15 and 15A also provide specifically for filing of memorandum of cross objection before the Tribunal, which is to be treated as an appeal. No similar provisions exist under the Central Excise (Appeals) Rules, 2001. Therefore, there is no legal provision providing for filing of cross-objection before Commissioner (Appeals). I therefore find no reason to interfere with the finding of the Commissioner (Appeals) that the memorandum of cross-objections before him is not maintainable in law and accordingly dismiss the appeal. (Pronounced in Court)

  ---

• 2007 (1) TMI 403 - CESTAT, BANGALORE
  

  Refund of provisional anti-dumping duty

  
  
  ... ...
  ... ... ..... r. Notification No. 25/2004-Cus., dated 22-1-2004 is the rescinding Notification. At the end of the Notification the following words appear ldquo except as respects things done or omitted to be done before such rescission. rdquo The lower authorities interpret the above words to mean that the provisional anti-dumping duty already paid cannot be refunded. On going through the above words, we are unable to derive an interpretation as given by the lower authorities. Moreover, on similar issue the Chennai Customs have granted refund order, which has been accepted by the department. In terms of the case laws cited supra, the department having accepted the principles laid down in earlier cases cannot be permitted to take a different stand. The provisions of Rule 21(3) are very clear and unambiguous. In view of the above, we do not find any merit in the impugned order, hence we set aside the same and allow the appeal with consequential relief. (Pronounced in open Court on 16-1-2007)

  ---

• 2007 (1) TMI 402 - CESTAT, NEW DELHI
  

  Cenvat/Modvat - Inputs

  
  
  ... ...
  ... ... ..... enue that there is a specific provision in Rule 57AD which clearly provides that ldquo Cenvat credit shall not be allowed on such quantity of inputs which is used in the manufacture of exempted goods. rdquo Rule 57AH contains the provisions for the recovery of Cenvat credit utilized wrongly. In the case of M/s. Albert David Ltd. v. CCE, Meerut - 2003 (151) E.L.T. 443 (Tri.-Del.), the Tribunal held that ldquo as the inputs have been utilized in the manufacture of wholly exempted goods credit taken in respect of such inputs is recoverable. rdquo The learned D.R. contended that the case of Albert David Ltd. (supra) was upheld by the Hon rsquo ble Supreme Court as reported in 2003 (157) E.L.T. A81. I find force in the submissions of the learned D.R. and, accordingly, the impugned order is set aside and the Order-in-Original is upheld. 5. emsp The appeal is allowed. The cross-objections filed by the respondent stand disposed of accordingly. (Dictated and pronounced in open Court).

  ---

• 2007 (1) TMI 401 - CESTAT, AHMEDABAD
  

  Stay/Dispensation of pre-deposit - Demand - Valuation

  
  
  ... ...
  ... ... ..... passed on to the applicants. The applicants relied upon the various decisions of the Tribunal whereby the Tribunal held that the cost of after sale-service is not to be added to the assessable value of the goods. We find that in the present case the facts are different as in this case the Revenue is not adding the amount collected by the dealer in respect of after-sale service rendered by the dealers. The repairing of pumps which were cleared by the applicants is clearly an activity which is rendered after clearance of the goods regarding which the discount is permissible. Therefore, prima facie, we find that it is not a fit case for total waiver of pre-deposit of duty. The applicants are directed to deposit an amount of Rs. 75,000/- within a period of 8 weeks from today and report compliance. On deposit of the said amount remaining amount of duty and penalty is waived till the disposal of the appeal. Adjourned to 22nd March, 2007. (Dictated and pronounced in the open Court.)

  ---

• 2007 (1) TMI 400 - CESTAT, KOLKATA
  

  Interest on refund - Strictures against Departmental authorities

  
  
  ... ...
  ... ... ..... limitation prescribed thereunder if not, reason thereof ? 5. emsp Report on the aforesaid facts be furnished to the Tribunal by 15-3-2007 with a copy to the Respondent, a fortnight before that date. The matter shall be called for hearing on 29-3-2007 to decide the issue. 6. emsp As far as practicable the higher authority in the administration may look to the issue so that delay is avoided for disposal of the appeal and the learned Assessing Officer who dealt the matter asking to pay 25 of Customs duty as against 10 required by the notification may also be directed to appear before the Tribunal to explain why such a statutory mandate was violated if Revenue does not dispute that notification in question was in force on the date of realisation of duty in question. It would be proper on the part of the authorities to ensure that neither the statutory provision nor the notification which forms part of the statute are paid scanty regard. (Dictated and Pronounced in the open Court)

  ---

• 2007 (1) TMI 399 - CESTAT, NEW DELHI
  

  Cenvat/Modvat - Inputs - Classification dispute

  
  
  ... ...
  ... ... ..... uestion are of non-alloy steel liable to pay duty under Section 3A of the Act and the recipient of raw material is entitled to avail deemed credit. Therefore, the present respondent has availed Modvat credit of duty paid at the rate of 16 by the manufacturer wrongly. 5. emsp I find that the respondents received the inputs manufactured by some other manufacturer under the invoices. No proceedings are initiated against the manufacturer of inputs regarding mis-declaration of goods etc. It is settled law that the Revenue cannot dispute classification and payment of duty at the recipients end to deny the credit. In the present case, the Revenue accepted the duty paid by manufacturer of inputs and no question has been raised in the present proceedings regarding the payment of duty. Therefore, I find no infirmity in the impugned order whereby the appellants are allowed to take credit of the same duty. The appeal is dismissed. (Order dictated and pronounced in the Court on 12-1-2006)

  ---

• 2007 (1) TMI 398 - CESTAT, NEW DELHI
  

  Appeal by Department - Authorisation

  
  
  ... ...
  ... ... ..... officer was holding charge of both Commissionerates, he was competent to sign for the committee. He would also point out that subsequently on joining of another Commissioner at Bhopal, a fresh authorization dated 6-12-2006 has also been filed. His submission is that second authorization may be taken on record and treated as a valid authorization and appeal admitted after condoning the delay. 4. emsp We find merit in the submission of the learned counsel for the respondent that same officer signing as two members of the committee would go against the principle that a Committee has to be constituted of more than one person. It also defeats the statutory scheme of the order being reviewed by more than one person (two Commissioners). But, for that reason, the present appeal does not become not maintainable as the Revenue has filed a fresh authorization dated 5-12-2006. The delay is condonable and we do so. The application of the revenue is allowed. (Pronounced in the open Court)

  ---

• 2007 (1) TMI 397 - CESTAT, NEW DELHI
  

  Cenvat/Modvat - Duty paying documents

  
  
  ... ...
  ... ... ..... oods, assessable value, name and address of factory. This amendment is applicable to the pending cases also as held by the Larger Bench of the Tribunal in the case of Kamakhya Steel v. CCE reported in 2000 (121) E.L.T. 247. 4. emsp The Revenue relied upon the finding of the lower authority. 5. emsp In the present appeal, the copy of invoices were produced by the appellant the appellant received the goods from stock yard of M/s. Tata Iron and Steel which is an interpreted stock yard and as per Board rsquo s instruction the certificate given by stock yard regarding payment of duty is sufficient. Further, I find that Rule 57G has been amended. In the present case as the stock yard of M/s. Tata Iron and Steel as mentioned the amount of duty paid, assessable vale of goods and name of the appellant is mentioned in the invoices, therefore, the impugned order whereby the credit was denied is not sustainable and set aside. The appeal is allowed. (Dictated and pronounced in open Court)

  ---

• 2007 (1) TMI 396 - CESTAT, BANGALORE
  

  Penalty - Relinquishment of title and goods abandoned

  
  
  ... ...
  ... ... ..... Visak, 2002 (146) E.L.T. 150 (Tri. - Che.) has clearly held that when importer relinquished the title and abandoned the goods and not opted to redeem the same then, penalty is not imposable. Learned Counsel also relies on the Division Bench ruling in the case of CC, ICD, TKD, New Delhi v. Sewa Ram and Bros., 2003 (151) E.L.T. 344 (Tri. - Del) on the same point. 2. emsp The heard learned DR who reiterated the departmental contentions. 3. emsp On a careful consideration, we notice that the provision of Section 23(2) of Customs Act itself lays down provision for abandoning the goods and in such circumstances duty is not to be levied. Therefore, the Tribunal in the cited judgments clearly held that when goods have been abandoned and totally relinquished, penalty is not leviable under Section 112 of the Customs Act. Therefore, the levy of penalty is not justified. The same is set aside by allowing the appeal with consequential relief if any. (Pronounced and dictated in open Court)

  ---

• 2007 (1) TMI 395 - CESTAT, MUMBAI
  

  Interest on refund of pre-deposit amount - Delay in grant - Refund of pre-deposit

  
  
  ... ...
  ... ... ..... escribed under the SSI notification and it is only on that basis the refund was sanctioned for the first time. Since the amount of refund of Rs. 10 lakhs was paid to the applicants within three months from the date of the Commissioner rsquo s order of 18-4-2000, the plea for payment of interest cannot be accepted, as there is no delay in payment of the refund. Reliance placed by the applicants on Board rsquo s circular dated 2-1-2002 is misplaced for the reason that the opening paragraph of the circular only states that the pre-deposit amount should be returned in the event an appellant succeeds in appeal or the matter is remanded for fresh adjudication and does not stipulate that the amount is to be paid within three months from the date when the case is remanded for fresh adjudication. 3. emsp In the light of the above discussion, we hold that the applicants have not made out a case for entitlement to interest. The application is accordingly dismissed. (Pronounced in Court)

  ---

• 2007 (1) TMI 394 - CESTAT, AHMEDABAD
  

  Valuation - Physician’s samples

  
  
  ... ...
  ... ... ..... case has decided the issue in respect of the provisions of rule 6 of Valuation Rules, 1975. The said Valuation Rules were replaced by Valuation Rules, 2000. 13. emsp In view of the facts and circumstances and the judicial pronouncements as indicated in above we find that the appeal of the assessee company has to be allowed and is allowed. 14. emsp As regards the appeal filed by the revenue it is seen that the revenue rsquo s appeal is not maintainable inasmuch as that revenue cannot be aggrieved by the impugned order as the said order upheld the entire order-in-original. The provisions of Section 35B will apply to the aggrieved person and we do not understand how revenue is aggrieved by the impugned order which is in favour of the revenue. Hence the appeal filed by the revenue is devoid of merits and is dismissed. 15. emsp Accordingly, the appeal filed by the appellant company is allowed and the appeal filed by the revenue is dismissed. (Pronounced in the Court on 10-1-2007)

  ---

• 2007 (1) TMI 393 - CESTAT, NEW DELHI
  

  Demand - Job work - Penalty - Imposition of

  
  
  ... ...
  ... ... ..... ground of bona fide belief. 7. emsp I find that the appellants are not denying the fact that they were receiving the mould and dies manufactured by other manufacturers along with raw material which is to be processed by these mould and dies and appellants are charging certain amount for this purpose. The appellants are after processing of the raw material was clearing the same to supplier of the raw material of mould and dies. In these circumstances, find merit in the contention of the Revenue that as the appellants are processing goods on behalf of others therefore, the amount received are job work charges. In these circumstances, I find no infirmity in the order whereby the demand is confirmed. However, it is not a case of penalty as the appellants were regularly issuing invoices in respect of these charges as trial charges and in the statutory record also reflected as mould trial charges. The appeal is disposed of as indicated above. (Dictated and pronounced in open Court)

  ---

• 2007 (1) TMI 391 - CESTAT, BANGALORE
  

  Interest for delay in payment of refund of Anti-dumping duty

  
  
  ... ...
  ... ... ..... ded under sub-section (2) of Section 27 is not refunded within three months. rdquo Provisions of Section 27A are attracted to all cases where refund of any duty ordered under Section 27 is not paid to the applicant within three months. The learned Departmental Representative urged that since the amendment, extending the provisions of Customs Act relating to interest, was made only on 10-9-2004, and in view of the fact that the refund claim pertains to a period prior to 10-9-2004, legally, the appellant is not entitled for interest. We do not agree with the interpretation of the Revenue. We hold that Section 27A is consequential to Section 27. Wherever refund under Section 27 is granted, 27A automatically follows. The fact that Section 9A of the Customs Tariff Act, 1975 was amended only on 10-9-2004 is immaterial. In these circumstances, we set aside the impugned order and allow the appeal. (Operative portion of this Order was pronounced in open court on conclusion of hearing)

  ---

• 2007 (1) TMI 390 - CESTAT, NEW DELHI
  

  Stay/Dispensation of pre-deposit - Demand - Valuation of export goods

  
  
  ... ...
  ... ... ..... ort goods. Therefore, value is required to be determined according to a reliable method so that the dispute between the parties could be adjudicated after ascertaining the correct factual position about value. Section 14(A) of the Central Excise Act provides for determination of cost by a Cost Accountant approved by the Chief Commissioner. That method could be made use of in the present case, since the goods are manufactured in India. This is all the more necessary, since many cases of the same type are being proceeded with. Accordingly, the Chief Commissioner of Central Excise, Chandigarh is directed to appoint a Cost Accountant, in consultation with the appellant, to determine the value of the export goods manufactured by the appellant. 5. emsp In the meantime, there shall be stay of recovery in view of the deposit already made. 6. emsp The case is adjourned to 19-3-07 for the production of the valuation report of the Cost Accountant. (Dictated and pronounced in open Court)

  ---

• 2007 (1) TMI 389 - CESTAT, BANGALORE
  

  Unjust enrichment - Refund of 1% extra duty deposit - HELD THAT:- We find that the amount paid by the assessee was not Customs duty on any imported items but was only a deposit of extra amount. They are asking refund of the same. The Commissioner (Appeals) has taken a correct view that the amount deposited is more than the duty amount and the same is refundable. We agree with the findings of the Commissioner (Appeals). There is no merit in the appeal and the same is rejected.

  ---

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