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Showing 241 to 260 of 781 Records

• 2007 (3) TMI 589 - CESTAT, MUMBAI
  

  Cenvat/Modvat - Capital goods - Words and Phrases

  
  
  ... ...
  ... ... ..... goods are removed without putting them to use. Admittedly, in the present case capital goods stand used for a period of more than 7 to 8 years. As such, the interpretation given by the authorities below would lead to absurd results if an assessee is required to reverse the credit originally availed by them at the time of receipt of the capital goods, when the said capital goods are subsequently removed as old, damaged and unserviceable capital goods. This would defeat the very purpose of grant of facility of Modvat credit in respect of capital goods and would not be in accordance with the legislative intent. The same view was held by the Tribunal in the case of Madura Coats P. Ltd. v. CCE, Tirunelveli - 2005 (190) E.L.T. 450 (Tri.) 2005 (70) RLT 730 (CESTAT - Ban.). As such I find no justification for the confirmation of differential amount. The impugned orders are accordingly set aside and appeal allowed with consequential relief to the appellants. (Pronounced on 14-3-2007)

  ---

• 2007 (3) TMI 588 - CESTAT, CHENNAI
  

  Adjudication - Remand - Scope of - Sale proceeds of goods - Confiscation of goods

  
  
  ... ...
  ... ... ..... ld, follow that the sale proceeds of the goods will have to be applied in terms of Section 150 ibid. 7. emsp In the result, we set aside the impugned order and allow these appeals by way of remand with the following directions to the Commissioner - (a) The claim of M/s. STC for share of sale proceeds of 1339 kgs. of mulberry raw silk, shall be allowed to the extent permissible under Section 150 of the Customs Act after giving them an effective opportunity of being heard on the quantification aspect. (b) The claim of M/s. WTL for sale proceeds of 1294 kgs. of mulberry raw silk shall be considered afresh after giving them an effective opportunity of being heard. It shall not be rejected on any ground without prior notice in accordance with the principles of natural justice. In the event of the claim being allowed, the provisions of Section 150 of the Customs Act shall apply to quantification of the claimant rsquo s share of sale proceeds. (Pronounced in open Court on 12-3-2007)

  ---

• 2007 (3) TMI 587 - CESTAT, CHENNAI
  

  Appeal - Limitation

  
  
  ... ...
  ... ... ..... ies from attachment. These averments in the affidavit can only be rejected as unconscionable. Remittance of the personal penalty imposed on the appellant could not have been made without his knowledge and authorization. As rightly submitted by learned SDR, the appellant was aware of the contents of the impugned order on 3-8-2003 when the penalty imposed on him by that order was paid. Demonstrably, the order was lsquo communicated rsquo to him before the said date. In the circumstances, the plea that the date (7-7-2005) on which the appellant through power-of-attorney holder applied for release of gold biscuits in terms of the Commissioner rsquo s order should be reckoned as the date of communication of the order is misconceived. 11. emsp In the result, the application for condonation of delay of 1662 days involved in the filing of the appeal is dismissed and consequently the appeal also gets dismissed. (Operative portion of the order was pronounced in open Court on 12-3-2007)

  ---

• 2007 (3) TMI 586 - CESTAT, MUMBAI
  

  Rectification of mistake

  
  
  ... ...
  ... ... ..... r had no jurisdiction to decide the matter. Inasmuch as, Order No. A-1587/WZB/05/SMC/C-III dt, 13-10-05 has been passed by single member, the same is in excess of jurisdiction. The ld. DR appearing for the Revenue agrees. Accordingly, I recall the order passed by the Tribunal, allow the application and direct the Registry to place the matter before the Division Bench. (Dictated in Court)

  ---

• 2007 (3) TMI 585 - CESTAT, NEW DELHI
  

  Remission of duty

  
  
  ... ...
  ... ... ..... f the judgment that theft cannot be considered to be an unavoidable accident for granting remission of duty in terms of Rule 49 of the erstwhile Central Excise Rules, 1944. 6.1 emsp It was further pointed out that similar view was taken in the following decisions - 1. CCE, Chandigarh v. International Woollen Mills - 1987 (28) E.L.T. 310 2. CCE, Chandigarh v. Royal Containers - 2006 (197) E.L.T. 381 3. B.G. Dhatu Udgoy Ltd. v. CCE, Delhi-III. - 2003 (158) E.L.T. 624. 7. emsp It is thus evident that there is an acute controversy and diversion of views between different Division Benches of the Tribunal on the issue whether theft or dacoity would be unavoidable accident within the meaning of Rule 49 so as to merit remission of excise duty on the goods so lost. The matter is, therefore, referred to Larger Bench for decision. Necessary directions may be obtained by the Registry for placing this appeal before the Larger Bench for disposal. (Pronounced and dictated in the open Court)

  ---

• 2007 (3) TMI 584 - CESTAT, CHENNAI
  

  Stay/Dispensation of pre-deposit - Valuation

  
  
  ... ...
  ... ... ..... in Vernica Herbs (supra) has been considered and held to be per incuriam on the point. Alternatively, we will have to examine the case of the appellants in the light of the legal provisions. These provisions include entry no. 25 of the 5th Schedule to the Packaged Commodity Rules, in terms of which cosmetics including hair dye are required to be sold in weight or volume. Admittedly, the appellants were selling their product by weight and each sachet cleared by them contained less than 10 gms. of the commodity. Prima facie, on these facts, the appellants can claim exemption of their goods from the operation of the Packaged Commodity Rules as well as exemption from the applicability of Section 4A. 3. emsp In the result, there will be waiver of pre-deposit and stay of recovery in respect of the duty and penalty amounts. 4. emsp Having regard to the high stake involved in the case, we direct the appeal to be posted to 5-6-2007 for hearing. (Dictated and pronounced in open Court)

  ---

• 2007 (3) TMI 583 - CESTAT, AHMEDABAD
  

  Production capacity based duty - Annual capacity of production

  
  
  ... ...
  ... ... ..... L.T. 128 (Tri.-Del) which held that ldquo Revenue is in appeal against the impugned order which allowed rebate to the respondent unit working under 3A (Compounded Levy) of the Central Excise Act. We find that the Commissioner rsquo s order was passed in view of the facts that power supply to the unit had been disconnected by the State Electricity Board. There is no material to contradict that position. There is no error in the impugned order. The appeal fails and is rejected. rdquo 4. emsp The main ground on which the department has filed the appeal is that the question of determination and enforcement of duty under Compounded Levy Scheme was required to be dealt with by the Executive Commissioner and, therefore, sought remain of the matter to the Commissioner. The order of the Commissioner (Appeals) is well founded and no valid ground has been brought out to set aside the impugned order. Therefore, the department rsquo s appeal is rejected. (Dictated and pronounced in Court)

  ---

• 2007 (3) TMI 582 - CESTAT, NEW DELHI
  

  Confiscation and penalty - Annual capacity of production - Production capacity based duty

  
  
  ... ...
  ... ... ..... the manufacturing activities, so, it has no relevancy as they were working under the compounded levy scheme under Section 3A of the Central Excise Act, 1944. It is revealed from the impugned order of the Commissioner (Appeals) that the goods are liable for confiscation under Rule 173Q(1)(b) of the Central Excise Rules, 1944 and, therefore, the case law cited by the learned Advocate is not applicable herein. It is pertinent to note that the goods were seized on 20-6-1998 and the appellant failed to produce the statutory record. On perusal of the record, it is revealed that designation of the concerned officer was recorded in the superdaginama. The appellants did not dispute the competency of the officer for recording of the statement any point of time and, therefore, such submission is not sustainable at this stage. 5. emsp In view of the above, I do not find any reason to interfere with the impugned orders and the appeals are rejected. (Dictated and pronounced in open Court)

  ---

• 2007 (3) TMI 581 - CESTAT, NEW DELHI
  

  Cenvat/Modvat - Capital goods

  
  
  ... ...
  ... ... ..... msp After hearing the learned DR and on perusal of the records, it is seen that the respondent availed Modvat credit in the year March 1998. Glass furnace classified under Heading No. 84.17 was eligible capital goods for the purpose of taking credit in the said period. There is no dispute that the capital goods in question used in fabrication of the chimney of the glass furnace. The Hon ble Supreme Court in the case of CCE v. Jawahar Mills Ltd. as reported in 2001 (132) E.L.T. 3 (S.C.) 2001 (45) RLT 739 (SC) held that the use of the product in or in relation to the manufacture of a final product would be the criteria to decide if a product would be eligible as a capital goods or not. In the present case, there is no dispute that ldquo Plain Plates of Steels rdquo were used in relation to manufacture of finished goods. So, I do not find any reason to interfere the impugned order. Accordingly, appeal filed by the Revenue is rejected. (Dictated and pronounced in the open Court)

  ---

• 2007 (3) TMI 580 - CESTAT, MUMBAI
  

  Cenvat/Modvat - Inputs

  
  
  ... ...
  ... ... ..... ring both the sides, I find that admittedly duty paid by the Pig Iron manufacturer has been availed as credit by the appellant. There is no reassessment of duty at the end of Pig Iron manufacturer. It is well settled that the Central Excise authorities having jurisdiction over the assessee availing Modvat credit cannot reassess the duty paid at the input manufacturer rsquo s end. Under the Modvat rules, an assessee is entitled to take the benefit of the Modvat credit of duty ldquo Paid rdquo and not duty ldquo payable rdquo . Inasmuch as, the appellant had taken the credit of duty paid by the input manufacturer he cannot be denied the credit of the same. As such, I set aside the impugned order and allow the appeal with consequential relief to the appellants. 3. emsp However, an amount of Rs. 509/- (Rupees five hundred nine only) confirmed by the lower authorities on different ground is not being disputed by the appellant. The same is accordingly confirmed. (Dictated in Court)

  ---

• 2007 (3) TMI 579 - CESTAT, NEW DELHI
  
  ... ...
  ... ... ..... rticulars were already known to the department and since the removal of these goods was in bulk, the respondent was under a bona fide belief that Section 4A was not applicable to such bulk removals. 4. emsp On going through the relevant material on record, it appears that the stand of the respondent that the goods were removed in bulk was not doubted. As per the circular of the Board dated 28-2-2002, bulk supplies for personal as well as industrial use were not covered under Section 4A of the Act for valuation purpose. This was, therefore, a valid ground for the bona fide belief of the respondent. Moreover, since the difference in the quantum of duty short paid was of Rs. 23,740/- over a period of fifteen months, the Commissioner, has rightly concluded that intention to evade the said differential amount of duty could not be attributed to the respondent. Therefore, there is no substance in this appeal. The appeal is dismissed. (Order dictated and pronounced in the open Court)

  ---

• 2007 (3) TMI 578 - CESTAT, CHENNAI
  

  Demand, interest and penalty

  
  
  ... ...
  ... ... ..... n maintained in the normal course of business and was unreliable. Similar allegation was raised against the drivers rsquo trip sheets which contained a few entries and not a substantial number considering the trips involved. The order has ignored these as if they did not need to be discussed. 26. emsp The impugned order rightly uses the preponderance of probability to arrive at the findings. But the Commissioner has glossed over several significant controversial aspects while doing so. On a careful analysis of the facts, we find that the order is not based on acceptable evidence. The facts of the case favour a categorical finding that the impugned order is not sustainable. We are convinced that the department has failed to prove the charge against the appellants that they had cleared cheese yarn in the guise of plan reel hank yarn. Accordingly, we set aside the same and allow the appeals with consequential relief if any. (Order pronounced in the open Court on 5th March, 2007)

  ---

• 2007 (3) TMI 577 - CESTAT, CHENNAI
  

  Stay/Dispensation of pre-deposit - Demand and penalty

  
  
  ... ...
  ... ... ..... as held by the Apex Court with reference to Section 28 of the Customs Act in the case of M/s. Trivandrum Rubber Works (supra). It would thus appear that M/s. SFL and the bank were wrongly targetted by the adjudicating authority for recovery of duty on the subject goods. Both these parties have made out strong prima facie case against the respective demands of duty as well as the respective penalties. It also needs mention that the penalty imposed on the bank by the Commissioner is five times the penalty which he had imposed on them in the earlier round of litigation. The Revenue can hardly make any whisper when the bank questions the decision of the Commissioner. In the result, there will be waiver of pre-deposit and stay of recovery in respect of the duty and penalty amounts in each of the appeals, C/516/2006 and C/539/2006. The appellants in Appeal No. C/31/2007 to report compliance on 28th May 2007. (Operative portion of the order was pronounced in open Court on 5-3-2007)

  ---

• 2007 (3) TMI 576 - CESTAT, BANGALORE
  

  Demand and penalty - Remission - Loss of goods

  
  
  ... ...
  ... ... ..... ldquo manufacture rdquo . The answer to this lies in the affirmative. Accordingly, it is clarified that gases falling under Chapter 28 and 29 produced in a factory and allowed to escape in atmosphere are not liable to duty. rdquo As per the above Board rsquo s Circular, gases which were vented out in the atmosphere are exempted from excise duty. The show cause notice admits the facts of venting out of the gases in the air. The Revenue has not produced any evidence that the appellants have collected any consideration of price for the gases which have been vented out in the atmosphere. The appellants have established that they have not received any consideration for the gases which have been vented out in the air. The Revenue is bound by the Board rsquo s Circular as held by the Apex Court in the case of Dhiren Chemical Industries (supra). There is no merit in the impugned order. The appeal is allowed with consequential relief if any. (Pronounced and dictated in the open court)

  ---

• 2007 (3) TMI 575 - CESTAT, NEW DELHI
  

  Cenvat/Modvat

  
  
  ... ...
  ... ... ..... the question whether electrodes used for manufacture and repairs of machinery were eligible for Modvat credit. The question as to whether the inputs used outside the factory could also be eligible, when used in relation to the manufacture of the product, was a question different from the question whether welding electrodes used for maintenance and repairs of the machinery were eligible for such credit. The latter question directly and substantially arose before the Larger Bench of the Tribunal in Jaypee Rewa Plant, which cannot be said to have been impliedly overruled by the decision of the Hon rsquo ble Supreme Court in Vikram Cements (supra). 8. emsp For the foregoing reasons, the authorities below have correctly relied upon the ratio of the decision of the Larger Bench of the Tribunal in Jaypee Rewa Plant for holding that Cenvat credit was not admissible to the appellant on welding electrodes. The appeal is, therefore, dismissed. Dictated and pronounced in the open Court

  ---

• 2007 (3) TMI 574 - CESTAT, KOLKATA
  
  ... ...
  ... ... ..... reason that the realization of the cess in question was admittedly without authority and erroneously collected by the Superintendent and submission of refund application by the appellant soon after realization of the levy, sufficiently proves that the deposit was not made by the assessee admittedly but under protest. Therefore there should be no abuse of process of law by the lower Authority. 5. emsp Accordingly, the matter is sent back to the record of the Appellate Authority below to come to a proper conclusion whether the levy erroneously collected should still be retained with the Department without sanction of law. The Appellate authority should dispose the matter within a month of receipt of the order in accordance with law when the levy was realized under protest. 6. emsp In the result, the impugned order is set aside and the appeal is allowed by way of remand for delivery of expeditious justice to the appellant. (Dictated and Pronounced in the open Court on 2-3-2007)

  ---

• 2007 (3) TMI 573 - CESTAT, NEW DELHI
  

  Cenvat/Modvat - Limitation for taking credit - Duty paying documents

  
  
  ... ...
  ... ... ..... on behalf of the Revenue contended that the date of issue of invoice is the first day for reckoning the period of six months. 3. emsp The ld. Advocate on behalf of the respondent submits that as per Section 9 of General Clauses Act the first day would be excluded while calculating the period of limitation. He also reiterates the finding of Commissioner (Appeals). 4. emsp After hearing both sides and on perusal of the records, I find that Rule 57G(5) of Rules 1944 provides that ldquo credit shall not be taken by the manufacturer after six months of the date of issue of any document rdquo . Section 9 of the General Clauses Act, 1897 stipulates that ordinarily in computing time, the first day is to be excluded and to include the last. In this case, the date of invoice is to be excluded while computing the period of six months. So, I do not find any reasons to interfere (sic) (with) the order of the Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is rejected.

  ---

• 2007 (3) TMI 572 - ITAT AMRITSAR
  

  Deductions - Profits and gains from infrastructure undertaking

  
  
  ... ...
  ... ... ..... y income of the assessee. Even if the assessee ceased to be an employee, he would still continue to earn interest on FDRs. Thus, both are independent sources of income. We are, therefore, of the considered opinion that interest earned on FDRs in the bank whether kept as a margin money or invested out of surplus funds would be liable to tax under the head Income from other sources . In any case, the same is not a profit derived from an industrial undertaking. 8. Thus, in the light of these facts and circumstances of the case, the legal position discussed above and by following the ratio of the various judgments referred to above, we hold that the assessee is not entitled to deduction under section 80-IA in respect of interest on FDRs. Therefore, we set aside the orders of the CIT(A) and restore that of the Assessing Officer. Accordingly, the grounds of appeals of the revenue are allowed for all the assessment years, 9. In the result, all the appeals of the revenue are allowed.

  ---

• 2007 (3) TMI 571 - CESTAT, CHENNAI
  

  Ceramic tubes (Thyratron Valves) - Exemption - Refund

  
  
  ... ...
  ... ... ..... r when she considers this as a procedural lapse which is condonable. It has been held by the Apex Court in the case of Mangalore Chemicals and Fertilizers Ltd. v. Dy. Commissioner, 1991 (55) E.L.T. 437 (S.C.) that non-observance of a procedural condition stipulated under an exemption Notification was condonable unlike a substantive condition. This Tribunal also condoned a similar non-observance of procedural condition of an exemption Notification in the case of Commissioner v. Dynaspede Integrated Systems Ltd., 2002 (147) E.L.T. 541 (Tri. - Chennai), wherein a certificate which was required to be produced by the importer for claiming the benefit of Notification No. 108/95-CE in respect of the goods imported by them but which was produced only subsequent to clearance of the goods was accepted and the benefit of the Notification was allowed. 4. emsp Following the case law cited above, we sustain the impugned order and dismiss this appeal. (Dictated and pronounced in open Court)

  ---

• 2007 (3) TMI 570 - CESTAT, CHENNAI
  

  Notification No. 67/87-Cus.

  
  
  ... ...
  ... ... ..... e appellants. According to that Explanation any item to be eligible for exemption under the Notification should be one intended for use in a power generation project. 3. emsp Learned consultant has relied on the Apex Court rsquo s judgment in Kerala State Electricity Board v. Collector - 2002 (142) E.L.T. 278 (S.C.), wherein it was held that power project within the meaning of Heading 98.01 of the Customs Tariff Act included not only a project that generated electricity but also one that transmitted and distributed electricity. However, in that case, the Electricity Board apparently had not claimed the benefit of Notification No. 67/87-Cus. and therefore the issue which is under consideration in the instant case was not before the Apex Court. 4. emsp In the result, the impugned order denying the benefit of Notification No. 67/87-Cus. to the Andhra Pradesh Transmission Corporation has to be sustained. The appeal is accordingly dismissed. (Dictated and pronounced in open court)

  ---

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