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Case Laws
Showing 241 to 260 of 732 Records
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2009 (11) TMI 791 - CESTAT NEW DELHI
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... ... ..... ant has filed the necessary returns. It is not a case of clandestine removal. There is no intention on the part of the appellant to evade the duty. It is the case of delay in payment due to unavoidable circumstances as claimed by the party. Inasmuch as the duty was not paid by the due date, the clearances are deemed to be non-duty paid clearances and hence violation of Rule 8(3A) of Central Excise Rules is established and some penalty is warranted. 4. In the facts and circumstances of the case, I hold that penalty under Section 11AC is not warranted and the same is modified as penalty of Rs. 5,000/- under Rule 27. 5. The appeal is disposed of in the above terms. Stay petition is also disposed of.
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2009 (11) TMI 790 - CESTAT NEW DELHI
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... ... ..... mpounded Levy Scheme came into force in respect of the products manufactured by the Appellant. In such a case, to fasten duty liability for a period when the Appellant was not engaged in production after due intimation to the Department is not warranted. If a new unit were to come into existence from 12-10-97, admittedly, the assessee was required to pay duty only from 12-10-97. As a unit which was functioning prior to 1-9-97 the production capacity may be determined by the method prescribed. However, I do not find any justification whatsoever to fasten liability for the period from 1-9-97 to 11-10-97. Even if it is held that the Appellant came under the scheme from 1-9-97, it is a clear case, where the benefit of abatement provided under proviso to Section 3A(3) is to be extended as the unit was not manufacturing after due intimation to the Department. 8. In view of the above, the Appeal is allowed with consequential relief as per law. (Dictated and pronounced in open Court)
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2009 (11) TMI 789 - CESTAT KOLKATA
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... ... ..... alid duty paying document during the period in dispute. The period in dispute is December, 2001 to April, 2002 whereby as per the CENVAT Credit Rules, 2001 the CENVAT Credit can be availed on the basis of invoice issued by the manufacturer. As during the period in dispute the invoice is valid duty paying document therefore Appellants are entitled for the credit. Reliance of Revenue on the decision in the case of Vandana Energy and Steel Pvt. Ltd. (supra) will not help the case as in that case the credit was availed on the basis of office copy of extra copy of invoice whereas in the present case invoice was issued by the manufacturer. In absence of any Rule which prohibits the Appellant for taking credit on the basis of invoice issued by the manufacturer during the period in dispute I find the impugned order is not sustainable hence set aside. Appeal is allowed. Appellants are entitled for consequential relief in accordance with law. (Pronounced and dictated in the open court)
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2009 (11) TMI 788 - CESTAT MUMBAI
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... ... ..... lications filed by the appellant seek stay of operation of the impugned orders wherein refund of Special Additional Duty paid by the respondent under sub-section 5 of Section 3 of the Customs Tariff Act was held to be admissible to them in terms of Notification 102/2007-Cus., dated 14-9-2007 read with the Board rsquo s Circular No. 6/2008 dated 28-4-2008. On a perusal of the above Notification, as amended by Notification 93/2008-Cus. dated 1-8-2008, we do not find any sufficient reason to stay the operation of the impugned order. Learned DR has argued against grant of the refund on the ground that, on the date of filing of Bill of Entry, the exemption notification was not in force. We find that the exemption notification itself provides for refund of SAD paid by an importer contingent upon post-importation sale of the goods. It prima facie appears from this scheme that the refund is admissible to the respondent. These applications are therefore, dismissed. (Dictated in Court)
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2009 (11) TMI 787 - CESTAT NEW DELHI
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... ... ..... arty. 3.2 Commissioner thereafter by order dated 12-4-07 reviewed the order of the original authority dated 16-11-2006 and directed filing of appeal on a short point that the penalty imposed should have been a minimum of Rs. 10,000/- as against Rs. 3,000/- imposed by the original authority. The appeal filed in pursuance of the review order stands dismissed by the Commissioner (Appeals) vide impugned order dated 29-8-07. 4. As the order of the original authority dated 16-11-2006 stands set aside vide order dated 26-3-07 by the Commissioner the order in review dated 12-4-07, in effect, reviewed a non-existing order. On the basis of that review order, the Department has filed the present appeal seeking enhancement of penalty from Rs. 3,000/- to a maximum of Rs. 10,000/- whereas by that time, the order imposing penalty of Rs. 3,000/- itself is not in force. 5. In view of the above, the appeal by the Department is rejected as not maintainable. Cross-Objection is also disposed off.
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2009 (11) TMI 786 - CESTAT KOLKATA
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... ... ..... pect of consignment in question. 2. The contention of the Revenue is that the respondents failed to produce that the consignment was not received. The Revenue relied upon the decision of the Hon rsquo ble Bombay High Court in the case of Metal Distributors Ltd. v. Union of India reported in 1993 (67) E.L.T. 229 to submit that the short landing of goods is to be proved on the basis of Certificate issued by the Port Trust Authority. It is also submitted that nothing has been produced from the exporter in respect of non-shipment of consignment in question. 3. I find that the Commissioner (Appeals) in the impugned order gave a finding on the basis of Certificate issued by Kolkata Port Trust and on the basis of insurance claim which were received by the respondents. There is nothing on record to show that the consignment in question was received. In the circumstances, I find no infirmity in the impugned order and the appeal is dismissed. (Dictated and pronounced in the open Court)
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2009 (11) TMI 785 - CESTAT MUMBAI
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... ... ..... ment of Cenvat credit, without a time limit, imposition of mandatory penalty would not be justified. However, there is no doubt that there has been a violation of the Cenvat Credit Rules in view of the fact that the inputs were not received within stipulated time of 180 days and the reversal was made not suo motu but on being pointed out by the Department. I am, therefore, of the view that penalty under Rule 15(1) of the Cenvat Credit Rules, 2004 is imposable. rdquo 7. I do not find any infirmity in the impugned order and the same is upheld. The learned DR has failed to prove that there was no mala fide intention of the respondent to evade the payment of duty. There is also no specific allegations against respondent in the show-cause notice that the respondent has intentionally evaded the payment of duty. In this situation, the appeal filed by the Revenue is rejected. Cross Objection filed in support of Order-in-Appeal is also disposed of. (Pronounced in Court on 26-11-2009.)
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2009 (11) TMI 784 - CESTAT AHMEDABAD
Attachment of leased factory - recovery of amount from the lessee to the lessor - Held that: - Commissioner (Appeals) has held that appellants are liable in terms of the provisions of Section 142 of Customs Act and held that only lessee is deemed to be in possession of the factory premises. We find that observation of the Commissioner (Appeals) about the applicability of Section 142 is not proper - detailed legal position as to the applicability of Section 142 and also the observation of Commissioner (Appeals) that Section 11 of Central Excise Act is not applicable is required to be examined at the time of final hearing of appeal - appeal allowed by way of remand.
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2009 (11) TMI 783 - CESTAT AHMEDABAD
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... ... ..... that substantial benefit of Cenvat credit should not be denied on the ground of procedural in-correctness. In the whole procedure which assessee has followed, the availment and utilization of Cenvat credit on corrugated boxes is by the appellant instead of by the manufacturer of pet jars which would have been the case, had proper procedure been followed. Except this, there is no effect on the duty collected by the department. 3.3 In view of the foregoing discussions, I find no merit in the case of the department and accordingly, after waiving the pre-deposit as required under Section 35(F) of the Central Excise Act, 1944, allow the appellant rsquo s appeal in full and set aside the impugned order. rdquo 5. In view of the above, we consider that credit availed by the appellants has been properly availed and accordingly impugned order is set aside and the appeals filed by the appellants are allowed with consequential relief to the appellants. (Dictated and Pronounced in Court)
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2009 (11) TMI 782 - CESTAT MUMBAI
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... ... ..... ommissioner (Appeal) relied on a decision of this Tribunal to classify the goods in favour of the assessee. In a case of this kind, wherein the Revenue and the assessee consistently took rival positions with their own arguments, it can hardly be said that the assessee was conducting themselves with intent to evade payment of duty. Even in the present appeal, there is no specific ground raised in favour of any penalty on the assessee, nor is there any prayer for imposing penalty on them. The appellant has not made out any case for a penalty on the respondent under Rule 25. 6. In the result, the assessee has to pay duty on the goods in terms of the binding decision of the Hon rsquo ble Supreme Court on the classification issue, but they can avail MODVAT/CENVAT Credit of the duty paid on inputs subject to production of the relevant duty-paying documents. There shall be no penalty on them. The appeal is partly allowed. 7. Cross objections are also disposed of. (Dictated in Court)
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2009 (11) TMI 781 - CESTAT NEW DELHI
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... ... ..... nd. These submissions have lot of force in them. I also find that the jurisdictional Central Excise officers have warehoused the goods received by the appellants. There is no allegation of any collusion. This goes to show that there was no deliberate intention on the part of the appellants in not following the procedure prescribed under Notification 34/01. The Commissioner (Appeals) has also recorded that there has been separate proceedings against M/s. Indian Oil Corpn. demanding duty on the raw naphtha cleared without observing due procedure to the appellants. Without commenting on eligibility or otherwise at the despatching end (the matter is not before me) I hold that there is no justification for imposition of penalty on the appellant. In the facts and circumstances of the case, there is no justification for imposition of penalty. 7. In view of the above, the penalty sustained by the Commissioner (Appeals) is set aside and the appeal is allowed with consequential relief.
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2009 (11) TMI 780 - CESTAT MUMBAI
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... ... ..... ies, I find that the Commissioner (Appeals) has discussed the issue in detail and allowed the appeal of the respondents. Further, I find that the respondents have not charged any extra amount on account of luxury tax from their customers and the price at which the snuff was sold was inclusive of all duties and taxes and the respondents have not paid the amount of luxury tax at the time of clearance as the respondents were contesting the levy of luxury tax but later on it was paid by the respondents out of the realized amount from the customers which was cum-duty price. Hence, I find that the respondent paid the duty on the assessable value without taking the abatement for the same and in that process they have paid more duty than what ultimately turned out to be payable under the law. Hence, I do not find any infirmity in the impugned order and the same is upheld. rsquo 10. In the above term, the appeal filed by the Revenue is rejected. (Pronounced in the Court on 19-11-2009)
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2009 (11) TMI 779 - CESTAT KOLKATA
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... ... ..... 2010 (250) E.L.T. 377 (T) . Now, the only three consignments valued at Rs. 25,000/- were remained un-claimed. The Hon rsquo ble High Court in the case of Suresh Kumar Nyollywalla (cited supra) held that the transporter is liable for penalty under Section 112 of the Customs Act, 1962 in case the owners of goods not disclosing their identity to claim confiscated goods nor they charging transporter for non-delivery of goods. In view of the above decision, I find that the appellants are liable for penalty under Section 112 of the Customs Act in respect of three un-claimed consignments. As the total value of consignment is Rs. 25,000/-, therefore, penalty of Rs. 5,000/- (Rupees five thousand only) will meet the ends of justice. Penalty is reduced to Rs. 5,000/- (Rupees five thousand only) on the appellants. The appeal is disposed off as indicated above. The appellants are entitled for consequential relief, if any, in accordance with law. (Dictated and pronounced in the open Court)
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2009 (11) TMI 778 - CESTAT NEW DELHI
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... ... ..... tent and sodium content permissible for mono potassium phosphate has also been specified. We find that no sample of the consignment imported by the assessee was got tested in the department rsquo s chemical laboratory to ascertain the identity of the goods. In the circumstances, there can hardly be an adverse inference against the assessee. Further, going by the description of the Heading 3105, we find that mineral or chemical fertiliser containing phosphorous and potassium are specifically covered by SH 3105 60 00. The Revenue has no case that the goods imported by the respondent is not of a kind used as fertiliser. The goods contained both phosphorous and potassium. It satisfies the description of the above sub-heading. Chapter Note 6 in Chapter 31 also supports the respondent rsquo s claim for classification of the goods under Heading 3105. This, however, is our prima facie view. In the result, the stay application filed by the appellant gets dismissed. (Dictated in Court)
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2009 (11) TMI 777 - CESTAT NEW DELHI
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... ... ..... ed on 1-4-02 and wrote to the Department a letter dated 18-10-02 as recorded in the order of the Commissioner (Appeals) to treat the matter as closed. Subsequently, they have paid interest of Rs. 31,548/- on 17-4-04. Original authority confirmed the demand of Rs. 98,589/- along with interest and imposed equal amount as penalty. The Commissioner (Appeals) taking the above facts into account, confirmed the amount of duty and interest but reduced the amount of penalty to Rs. 20,000/-. 3. After hearing both sides, we are of the view that the penalty sustained by the Commissioner (Appeals) on the appellant is not justified. The same is set aside. 4. The appeal is disposed of as above.
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2009 (11) TMI 776 - CESTAT KOLKATA
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... ... ..... g ornaments. During arguments a specific query was made to the Appellant, who appeared in person, whether the Appellant was regularly sending the gold to Shri Ajay Sarraf for making ornaments. The Appellant replied that it was the first time he has sent the gold for making ornaments. In these circumstances as the persons from whom the gold was recovered that too from their rectums had not challenged the findings of the adjudicating Authority regarding recovery of the gold at land customs station. The present Appellant claimed the gold only in reply to the show cause notice and during investigation had not made any such claim though summons were issued to the Appellant. The claim of the Appellant is also not sustainable on the ground that Shri Ajay Sarraf to whom the gold was sent denied this fact and though he was related to the Appellant. In these circumstances I find no infirmity in the impugned orders and Appeals are dismissed. (Pronounced and dictated in the open courts.)
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2009 (11) TMI 775 - CESTAT MUMBAI
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... ... ..... 7-5-2009 2009 (247) E.L.T. 682 (Tribunal) , wherein the Commissioner was directed to dispose of the matter prior to 31-12-2009. We are told that the Commissioner is awaiting the results of the present appeal also. This is one of the circumstances, which we considered while allowing the Revenue rsquo s EH application. 3. It appears from the learned Commissioner rsquo s order that she was acting upon the verification report submitted by the Divisional Assistant Commissioner. Her order does not disclose independent application of mind. Such an order requires to be set aside at the earliest. 4. In the result, we set aside the Commissioner rsquo s order and allow this appeal by way of remand, directing the Commissioner to take fresh decision on the three abatement applications of the assessee while dealing with the case already remanded by us under order dated 7-5-2009. Needless to state that the assessee should be given a reasonable opportunity of being heard. (Dictated in Court)
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2009 (11) TMI 774 - CESTAT NEW DELHI
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... ... ..... paid by manufactures. rdquo The impugned order nowhere discloses any discussion on the point as to whether the local tax paid by the manufacturer included the sales tax, local and/or central. This aspect was required to be verified by the Adjudicating Authority by taking into consideration the factual situation in relation to the payment of such taxes, if any, by the appellants for the relevant period. The authority having not done the required exercise and merely on the basis of remarks on the invoices the matter having been disposed of, the same cannot be sustained and the matter need to be remanded to the authority to deal with the same afresh in accordance with provisions of law and to arrive at or correct finding based on the fact situation in the matter. As no other point is canvassed, the matter is remanded for the above purpose with the direction that the authority shall dispose of the matter as early as possible. Appeal accordingly stands disposed of, in above terms.
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2009 (11) TMI 773 - CESTAT BANGALORE
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... ... ..... f the case records and the submissions made by both sides, we find that the impugned consignment was subjected to assessment of export duty Rs. 300/- per MT as against Rs. 55/- per MT for the reason that the iron content ascertained in the consignment was not below 62 . The same was found on test to be 62.1 by the Chemical Examiner, Central Revenue Laboratory, Cochin. In the circumstances, we find that the Commissioner should have allowed the request of the exporter to have a re-test of the sample drawn, by the CRCL, New Delhi. We find that the impugned order has been passed in violation of principles of natural justice. Accordingly, we vacate the impugned order and remand the matter to the Commissioner to take a fresh decision after a sample of the consignment already drawn is got tested by CRCL, New Delhi. Needless to say that the exporter shall be heard before such a decision is taken. The appeal is thus allowed by way of remand. The stay application also gets disposed of.
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2009 (11) TMI 772 - CESTAT NEW DELHI
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... ... ..... s are known to both the parties, omission by one party to do what he might have done will not amount to suppression and that for invoking extended period, some thing positive other than mere inaction or failure on the part of the manufacturer - conscious or deliberate withholding of information when the manufacturer knew otherwise, is necessary. 3.1 In this case, none of the criteria for invoking extended period are satisfied. The criteria for invoking extended period under proviso to Section 11A and for imposition of penalty under Section 11AC are identical. Hence neither extended period for recovery of duty is invokable nor penalty under Section 11AC is imposable. 4. In view of above discussion, the duty demand is upheld only for the normal limitation period and the duty demand for the period beyond the normal limitation period as well as the penalty under Section 11AC is set aside. The appeal is partly allowed. (The operational portion of the order pronounced in the Court)
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