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Case Laws
Showing 241 to 260 of 931 Records
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2008 (9) TMI 796 - CESTAT, CHENNAI
WinBee thin client ... ... ... ... ..... s not considered by the Commissioner. 3. emsp We find that, on the one hand, the Board rsquo s circular draft was refused to be considered by the Commissioner and, on the other hand, the Tribunal rsquo s decision in Hewlett Packard case (supra) was not considered by him. It is also on record that the adjudicating authority placed undue reliance on a ldquo White Paper rdquo prepared by an employee of the appellant - company though the company disowned the document. We think that, for all these reasons, the case requires to be remanded to the lower authority. Accordingly, the impugned orders are set aside and these appeals are allowed by way of remand. The Commissioner shall pass fresh orders of adjudication after considering the Board rsquo s circular dated 15-6-07 and the Tribunal rsquo s decision in Hewlett Packard case and, of course, after affording the assessee a reasonable opportunity of being heard. (Operative part of the order was pronounced in open court on 29-9-2008)
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2008 (9) TMI 795 - CESTAT, CHENNAI
EPCG licence - Capital goods, component thereof ... ... ... ... ..... goods required for assembly or manufacture of capital goods by the importer rdquo . Support is also claimed from the Board rsquo s Circular No. 80/2000-Cus. dt. 22-9-2000, wherein CBEC examined EPCG scheme and clarified that the benefit of Customs Notification No. 49/2000-Cus. dt. 27-4-2000 had to be extended to an importer where the conditions of the Notification were fulfilled and the EPCG licence was otherwise valid to cover the imported goods. 2. emsp After considering the submissions, we find that it is not in dispute that the conditions of the Notification were fulfilled by the importer. Admittedly, the ldquo plastic foil rdquo was specifically covered by the EPCG licence. On these facts, the benefit of the Notification should be extended to the respondents in terms of the second Circular No. 80/2000-Cus. ibid. The circular is binding on the Revenue. 3. emsp In the result, the appeal gets dismissed. (Operative part of the order was pronounced in open court on 29-9-2008)
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2008 (9) TMI 794 - CESTAT, CHENNAI
Appeal - Limitation - Delay of 275 days in filing ... ... ... ... ..... orders. These averments of Shri Jagdish Bajaj are too silly to be accepted in support of his applications for condonation of delay of appeals. Admittedly, Shri Jagdish Bajaj read the contents of the impugned orders immediately upon receipt of the same. He must also have read the preamble to each order, which required him to file appeal with this Tribunal if aggrieved. Even otherwise, it is unconventional and illogical for anyone in the modern times to believe that somebody else, without power of attorney, will file a statutory appeal against a quasi-judicial order passed against the former. As rightly submitted by the JDR, Shri Jagdish Bajaj has also failed to show sufficient cause for condonation of delay of his appeals. The COD applications are therefore dismissed and consequently the appeals filed by Shri Jagdish Bajaj are dismissed as time-barred. The connected stay applications also get dismissed. (Operative portion of the order was pronounced in open court on 29-9-2008)
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2008 (9) TMI 793 - CESTAT, KOLKATA
Appeal to Appellate Tribunal - Maintainability of ... ... ... ... ..... 05, the defect has not been rectified. It was also indicated in the Registry rsquo s letter cited above that since the order-in-appeal showed two appeal Nos. 315 and 316, the Department was required to file two appeals but that has also not been rectified. Further, we do not find any finding by the Commissioner that the order under appeal is not legal or proper. Hence for all these infirmities, we are of the view that the appeal filed by the Department is not maintainable and the same is rejected. (Dictated and pronounced in the open Court)
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2008 (9) TMI 792 - CESTAT, , KOLKATA
Stay/Dispensation of pre-deposit ... ... ... ... ..... s have merely asked for a remand of the appeal and hence the same may be remanded for redecision by the lower appellate authority in the light of the cited Tribunal rsquo s decision upheld by the Hon rsquo ble Supreme Court. 3. emsp After hearing both sides, we find that the original authority has merely relied on a Board rsquo s Circular ignoring the cited Tribunal rsquo s decision upheld by the Hon rsquo ble Supreme Court. Such a course of action is not legal and proper. Moreover, both the authorities below have not dealt the cited Tribunal rsquo s decision which they were duty bound to do. As such, we waive the requirement of predeposit, set aside the impugned order and remand the appeal for decision on merit by the lower appellate authority. He shall pass an order on merit after giving a reasonable opportunity of hearing to the appellants. 4. emsp The appeal is thus allowed by way of remand. Stay petition also gets disposed off. (Dictated and pronounced in the open Court)
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2008 (9) TMI 791 - CESTAT, NEW DELHI
Stay order - Extension of ... ... ... ... ..... give any reason for non-listing of appeal hearing. Registrar is directed to look into the matter. 2. emsp The appeal could not be heard within the prescribed period of 180 days for no fault on the part of the appellants and, therefore, in view of the decision of the Supreme Court in Commissioner of Customs and Central Excise, Ahmedabad v. Kumar Cotton Mills P. Ltd. reported in 2005 (180) E.L.T. 434 (S.C.) (Paragraph 6) the interim stay as granted will continue until further orders. The miscellaneous application is allowed. (Dictated and pronounced in the open court)
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2008 (9) TMI 790 - CESTAT, KOLKATA
Confiscation and penalty ... ... ... ... ..... incidents of explosion and death of persons involved in handling of scrap. Hence, the requirement of the beneficial policy cannot be taken lightly or waived. 5. emsp However, in the instant case, we find that the Appellants have taken the necessary steps to obtain the PSI certificate as required under the law and it was beyond their control that the said certificate had some defects in the manner of its preparation. We also take into account of the fact that on 100 examination, nothing objectionable was found in the consignment of the Appellants and that they have suffered huge loss on account of demurrage. Hence, taking these mitigating factors into consideration, while upholding the confiscation ordered by the Adjudicating Commissioner, we reduce the Redemption Fine to Rs. 25,000.00/- (Rupees twenty-five thousand) and in the circumstances of the case, waive the penalty imposed on the Appellants. The Appeal is thus partly allowed. (Pronounced and dictated in the open court)
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2008 (9) TMI 789 - CESTAT, NEW DELHI
Penalty - Quantum of ... ... ... ... ..... cleared clandestinely. No doubt, the Respondent failed to give any explanation for the shortage. It is not ipso facto that the goods were cleared clandestinely. The shortage may be ascertained for various reasons. In any event, the Respondent did not dispute the shortage and paid the duty. It does not mean that the goods were clandestinely removed. The contention of the ld. DR that the demand of duty acknowledged by the Respondent would establish that the goods were clandestinely removed. I do not find any force in the submission of the ld. DR. It is well settled law to impose penalty under Section 11AC of the Act, it has to be established clandestine removal of the goods. In the present case, as already stated, no material is available to impose penalty under Section 11AC of the Act. So, I do not find any reason to interfere the order of the Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is rejected. (Dictated and pronounced in open court on 24-9-2008)
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2008 (9) TMI 788 - CESTAT, BANGALORE
Show cause notice - Scope of - Classification of goods ... ... ... ... ..... n his decision. That means the Appellate Authority should on the basis of the available records decide between these two competing entries. Therefore, we are of the considered opinion that the case has to be remanded to the Appellate Authority who should decide between the two competing entries i.e., one proposed and decided by the Original Authority and one claimed by the appellants. No classification which has not been proposed in the Show Cause Notice should be taken up for examination. This should be done in the light of the available records after giving a personal hearing to the appellants. Thus, we remand the matter to the Commissioner (A) for a de novo decision within three months from the date of receipt of this order. Since we have recalled the Final Order, the Commissioner (A) can decide the issue in the light of our directions without being influenced by the recalled final order. Thus, the appeal is allowed by way of remand. (Pronounced in open Court on 23-9-2008)
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2008 (9) TMI 787 - CESTAT, NEW DELHI
Refund - Correction of clerical ... ... ... ... ..... d the value in GBP by mistake. It is a clear case of mistake due to oversight of the value declared in the invoice. The Commissioner (Appeals) allowed the refund claim following the decision of the Tribunal in the case of Aditya Birla Nuvo Limited reported in 2008 (222) E.L.T. 249 (Tri. Bang). In the case of CC (Import), Mumbai v. Nicolas Piramal India Ltd. reported in 2008 (225) E.L.T. 99 (Tri.-Mum.), the Tribunal held that limitation period provided under Section 27 of Customs Act, 1962 is not applicable to refund arising out of correction of clerical or arithmetical error. It is seen that the mistake in the present case is in clerical nature which can be rectified. So, the refund arising out of correction of USD instead of GBP in the Bill of Entry is admissible without filing appeal against the Bill of Entry. So, I do not find infirmity in the order of the Commissioner (Appeals). The appeal filed by the Revenue is rejected. (Order dictated and pronounced in the open Court)
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2008 (9) TMI 786 - CESTAT, NEW DELHI
Cenvat/Modvat - receipt of inputs - proof - Held that: - the initial burden that goods had not been received by the appellant has been discharged by the Revenue, therefore, the onus is on the appellant to prove that the duty paid goods were actually received in the factory and used in the excisable goods - matter is remanded to the adjudicating authority to decide afresh - appeal allowed by way of remand.
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2008 (9) TMI 785 - CESTAT, MUMBAI
Refund - Limitation ... ... ... ... ..... for duty paid in excess has been filed the respondents beyond the time as stipulated by the provisions of Section 11B of Central Excise Act, 1944. Her order of allowing appeal and setting aside the order-in-original is based upon the ground that the respondents has submitted enough proof to show that there is no unjust enrichment. To my mind this reasoning is incorrect as it has to be first decided whether the refund claim is within time as provided in statute as per Section 11B of the Central Excise Act, 1944. The conclusion arrived is that the refund claim is clearly time barred. If that be so, there cannot be any further deliberations as, at the threshold level the refund claim stands rejected. There is no appeal filed by the respondent against this portion of the order. Accordingly, in my view the impugned order as passed by the ld. Commissioner (Appeals) is incorrect and requires to be set aside and I do so. The appeal filed by the revenue is allowed. (Dictated in court)
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2008 (9) TMI 784 - CESTAT, BANGALORE
Cenvat/Modvat - Capital goods ... ... ... ... ..... ture because the cleaning of linen and apron is a part of making the goods marketable. Without the goods being brought to a marketable stage, they cannot be sold. Therefore, the Textile Processing Machines have to be considered as Capital Goods and the benefit of Cenvat credit has to be extended. The said machinery is used in the factory in the production process and falls under Chapter Heading 84, which is not excluded under Rule 2(a)(A) of the Cenvat Credit Rules. Therefore, the denial of credit on Textile Processing Machine is set aside while the denial of credit in respect of MS BO SS Flanges is allowed. 5.2 emsp In so far as the penalty is concerned, this Bench, in their own case, set aside the penalty in the Final Order No. 769/2007 dated 24-7-2007. There was no cause for imposing penalty, as there was no deliberate intention to evade duty in the matter. Hence, the penalty is set aside and the appeal is allowed in the above terms. (Pronounced and dictated in open Court)
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2008 (9) TMI 783 - CESTAT, NEW DELHI
Penalty on Customs House Agent - Overvaluation - Abetment ... ... ... ... ..... ping bills for which they were not authorised. Further, CHA in his statement admitted that exporter had explained that the retraction of the goods will be disclosed subsequently and the exporter had made arrangements and that whatever the value will be declared, will be accepted by the customs. In the present case, there is no statement available of knowledge of CHA regarding fraud committed by exporter. So, the case law is cited by the ld. DR is not available herein. 10. emsp In the instant case, it appears that the appellants filed shipping bills on the basis of documents supplied by the exporter. Further, the representation of the exporter was accompanying the goods. There is no evidence to prove that the appellant had aware of fraudulent activities of the exporter. So, the imposition of the penalty on the appellants are not warranted. Accordingly, penalties on the appellants are set aside. The appeals are allowed. (Order dictated and pronounced in open court on 16-9-2008)
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2008 (9) TMI 782 - CESTAT, BANGALORE
Stay/Dispensation of pre-deposit - Precedent ... ... ... ... ..... erim Stay till the stay application is finally heard. The Revenue shall not prevent the appellants from clearing the goods and should not put hurdles in the production till the appellant rsquo s appeals are finally disposed of. Registry to issue this order out of turn. The prayer for adjournment on behalf of Revenue to call for para-wise comments is accepted, The stay application to come up for final hearing on 13th October, 2008. Interim stay granted. 5. emsp The Commissioner has made certain unsavory remarks in para 45 of the Order against the Tribunal especially by use of words such as ldquo just as the tail cannot wag the dog rdquo . The tenor of his order is undignified and causes aspersions on the dignity of the Tribunal. The Commissioner shall give his personal explanation as to why the matter should not be referred to the Chairman of the Board for initiating disciplinary action for using unsavory remarks in Para 45 of the Order. (Pronounced and dictated in open Court)
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2008 (9) TMI 781 - CESTAT, BANGALORE
Stay/Dispensation of pre-deposit - Rebate ... ... ... ... ..... edit Rules, 2004 in respect of materials imported/procured against the said authorization has not been availed rdquo . 8. emsp A careful reading of the above provisions reveals that in terms of the policy and Notification, rebate on the inputs procured indigenously against authorization should not be taken. Further, Cenvat credit on the input procured indigenously against the authorization should not be availed. But, in the present cases the rebate claim is only on the final products and not on the inputs. Further, the credit has been taken on the inputs procured indigenously and which are not against DFIA. We do not find any violation of either the Notification or the policy. Prima facie, as the appellants have a strong case on merits, we order full waiver of the pre-deposit of the duty demanded along with interest till the disposal of the appeal. As the amounts involved are huge, the matter may be listed for hearing on 19-12-2008. (Pronounced in open Court on 11 Sept, 2008)
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2008 (9) TMI 780 - CESTAT, BANGALORE
Rubberised Nylon Tyre Cord Fabrics (RNTCF) - Appellate Tribunal - Duties ... ... ... ... ..... o the authority, RNTCF has a shelf life of one week. It is also on record that the appellants had been buying both plain tyres cord fabrics as well as dipped/impregnated tyre cord fabric and were bringing into effect RNTFC in their factory before they were built into tyres. In several decisions of the Apex Court and Tribunal, RNTCF has been held to be classifiable under Chapter Heading 59.06 None of these decisions has held that the impugned item was non-excisable. Even though the classification of RNTCF was not an issue in the show cause notices, which propose the denial of the benefit of exemption Notification 67/95 dated 16-3-1995, they would be relevant as the leviability of AED depends upon the classification. If the product is classified under 59.06, no AED will be leviable. In view of the above, we do no find any infirmity in the impugned orders. Hence, the same are upheld. The appeals are rejected. (Pronounced operative portion of the order in open Court on 19-6-2008)
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2008 (9) TMI 779 - CESTAT, BANGALORE
Refund - Limitation - Compounded Levy Scheme ... ... ... ... ..... se and it is not a dispute that subsequently the quantity of so-called excess material has been received. An extract of RG 23 Accounts and the Bill of Entry have been produced before the Tribunal. 7. emsp On a very careful consideration of the issue, we find that there appears to be a lapse on the part of the appellants in taking excess credit when the entire material has not been received. However it is seen that subsequently the material short received has been received by the appellants. In these circumstances, we do not find any revenue loss. Therefore the demand of duty is not justified. However for the lapse of taking excess credit, the imposition of penalty is justified. Taking into account the facts and circumstances of the case and also the amount involved in the matter, the penalty is reduced from Rs. 10,000/- (Rupees Ten thousand only) to Rs. 2000/- (Rupees Two thousand only). The appeal is disposed of in the above terms. (Pronounced and dictated in the open court)
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2008 (9) TMI 778 - CESTAT, AHMEDABAD
Refund - Limitation - Compounded Levy Scheme ... ... ... ... ..... ed the submission made by the learned Consultant for the appellants. We find that in this case, the appellant had challenged the provisional assessment which was finalized by the Deputy Commissione and succeeded. It is not disputed that refund claim related to the period for which provisional assessment was finalized by the Deputy Commissioner. The only mistake the appellants have done is that they had not paid under protest even when there was a dispute regarding assessment itself. Since the assessment itself was challenged and in view of the decision of the Hon rsquo ble Bombay High Court in Om Textile Private Ltd. v. CCE, Belapur, Navi Mumbai reported in 2006 (74) RLT 233 (Bom.), we feel that limitation under Section 11B is not applicable and accordingly, the refund claim has to be allowed. However, the matter is remanded to the original adjudicating authority to examine whether the refund is hit by unjust enrichment clause under Section 11B. (Pronounced in the open Court)
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2008 (9) TMI 777 - CESTAT, NEW DELHI
Refund - Cenvat/Modvat ... ... ... ... ..... vice tax on output service, And where for any reason such adjustment is not possible, the manufacturer or the provider of output service shall be allowed refund of such amount subject to such safeguards, conditions and limitations, as may be specified, by the Central Government, by Notification rdquo . 5. emsp On perusal of Rule 5 of the said Rules, it is clear that refund of credit shall be allowed where adjustment of credit towards the payment of duty of excise on final products for home consumption is not possible. In the present case, it transpires from the facts that the appellant used the credit on the inputs towards payment of duty on the final products cleared for home consumption as is evident from the return for the relevant period in 2003. So, the appellants are not eligible for refund of such amount. 6. emsp Hence, I do not find any reason to interfere with the order of the Commissioner (Appeals). Accordingly, the appeal is rejected. (Pronounced in the open Court)
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