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Showing 301 to 320 of 445 Records
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2001 (12) TMI 188 - ITAT AHMEDABAD-A
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... ... ..... hikhamchand Jankilal (1980) 19 CTR (MP) 311 (1981) 131 ITR 554 (MP) and CIT vs. Bharat Insurance Company Ltd. (1983) 34 CTR (Del) 371 (1983) 142 ITR 342 (Del). After giving a deep and thoughtful consideration to the elaborate and convincing reasons given by the CIT(A) in the order passed by him, we are of the considered opinion that the CIT(A) has rightly deleted the disallowance out of interest expenditure made by the AO in asst. yrs. 1990-91 and 1991-92. We do not find any justification to interfere with the view taken by the CIT(A) in relation to this common ground raised by the Revenue in asst. yrs. 1990-91 and 1991-92. 30. In the result (i) Assessee s appeal for asst. yr. 1988-89 (ITA No. 2541/Ahd/1995) is dismissed. (ii) Assessee s appeal for asst. yr. 1989-90 (ITA No. 2542/Ahd/1995) is partly allowed. (iii) Revenue s appeal for asst. yr. 1990-91 (ITA No. 2898/Ahd/1995) is partly allowed. (iv) Revenue s appeal for asst. yr. 1991-92 (ITA No. 2899/Ahd/1995) is dismissed.
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2001 (12) TMI 187 - ITAT AHMEDABAD
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... ... ..... ncing the money to the sister concerns. Thus, no expenditure is attributable to the earning of interest of about Rs. 1,80,000. The only other income disclosed by the assessee in the year under appeal is Rs. 28,682 from commission from a sister concern. The expenditure of Rs. 2,32,880 against the income of Rs. 28,628 is unimaginable. The expenditure cannot exceed the income unless the assessee establishes that the expenditure had been incurred for purposes of business. If the claim were to be considered against the income from business or the expenditure has been incurred for earning the income if the income were to be assessed under the head income from other sources . I, therefore, consider it just and reasonable to restore the limited issue to the file of the AO for the purpose of considering the claim of the assessee relating to expenses in the light of the findings and observations in this order. 17. For statistical purposes, the appeal of the assessee is partly allowed.
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2001 (12) TMI 186 - CEGAT, KOLKATA
Re-adjudication on remand - De novo proceedings - Adjudication - Natural justice ... ... ... ... ..... remand the matter to the Commissioner for fresh adjudication. 4. 8195 We would like to observe here that the applicants/appellants would be supplied with the documents relied upon by the Revenue in support of its case. We make it clear that in case the applicants/appellants desire to look into any other document not supplied by the Revenue, they may make a specific request to the adjudicating authority to that effect. In case of inspection of the originals, also a specific request would be made by them. The applicants/appellants would cooperate in all .respects with the Revenue Authorities and would appear before the adjudicating authority on the date of hearing so fixed by him who would intimate about such date well in advance of the same. All the appeals are thus allowed by way of remand. We make it clear that no opinion is being expressed on the merits of the cases. Stay Petitions also get disposed of. We expect the Commissioner to conclude the proceedings expeditiously.
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2001 (12) TMI 185 - CEGAT, MUMBAI
Valuation (Customs) - Confiscation and penalty - Conveyance ... ... ... ... ..... a. The driver (who also is the owner of each of the tempo vans) stopped by the officers on the highway had professed their ignorance of the facts that the yarn in question was being removed from the premises of Swem Industries contrary to law and had also emphasised that one of the tempo vans which were travelling together, carried an employee of this firm. There was also another employee who was to accompany the third tempo. In these circumstances, we are satisfied that these persons and Dayaram Prajapati, the owner of the third tempo and Ilyasbhai Shaikh, its driver were not aware of the nature of the goods. 7. 8195 We therefore allow the Appeal 284/01 and set aside (only for the purpose of determining the duty now payable in accordance with our order on the goods and the penalty on the firm equal to the duty) the order of the Commissioner confirming duty and penalty on it. All other appeals are also allowed and set aside the penalty imposed and confiscation of the tempos.
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2001 (12) TMI 184 - CEGAT, CHENNAI
Valuation (Customs) - Transaction value ... ... ... ... ..... e the importer had produced 3 Bill of Entries which had been assessed and accepted by the authorities by which the present goods were imported. The Commissioner (Appeals) had got this verified also and having found that there is no evidence produced by the Revenue in enhancing the value he accepted the importer s claim. Even before us the Revenue has not produced any evidence except to contend that the Addl. Commissioner s order is correct and the same is required to be accepted. 8. 8195 On a careful consideration we are not agreeable with the contentions raised by the Revenue. In order to enhance the value and to reject the transaction value the Revenue is required to substantiate their claim by producing evidence which is contemporaneous in nature. In the absence of any evidence the order passed by the Commissioner (Appeals) is correct and requires to be confirmed. There is no infirmity in the impugned order. There is no merit in this appeal and hence the same is rejected.
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2001 (12) TMI 181 - CEGAT, KOLKATA
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... ... ..... aring Shri T.K. Kar, ld. SDR for the Revenue, we agree with the contention of the ld. Chartered Accountant. There is no dispute about the legal position that where the entire parts and components of complete machines are cleared from the assessee s factory, even though spread over a period of time, as in cases of huge machinery, it may not be possible to clear the same in completely assembled condition, the same have to be assessed as machines. However, inasmuch as, a number of contracts are involved in the present appeals and it is required to be verified in each and every case whether the machines were cleared in knocked down condition and whether the duty has been paid on the entire contract value of the machines, we set aside the impugned order and remand the matter to the Commissioner for fresh decision in the light of the above observations made by us in the preceding paragraph. Appeals are thus allowed by way of remand. Miscellaneous Applications also get disposed of.
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2001 (12) TMI 178 - CEGAT, NEW DELHI
Modvat/Cenvat ... ... ... ... ..... nor spare parts or accessories of the aforestated machine, machinery, plant etc. as per clause (b) to Explanation 1 under Rule 57Q. It is also observed that they are not even covered under clause (e) to Explanation 1. The Hon ble Supreme Court in the case of C.C.E., Coimbatore and Others v. Jawahar Mills Ltd. - 2001 (132) E.L.T. 3 (S.C.) have observed that the parts of the items could not be treated as capital goods where the manufacturer could not establish that the entire item was used in the manufacture of final product. It is also held that under these circumstances, user will determine whether the item may qualify the requirement of clause 1(a). Since in the present case, it is held that the items under consideration do not satisfy the requirement of capital goods within the meaning of the rule on the ground of its user, I find no discrepancy in the findings arrived at by the lower appellate authority. The appeal has thus no merit and the same is accordingly dismissed.
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2001 (12) TMI 177 - CEGAT, NEW DELHI
Modvat/Cenvat - Modvat on inputs ... ... ... ... ..... mmissioner (Appeals) also held that parts of machine which are covered by description of inputs as contained in Column 2 of the table annexed to Notification No. 217/86 are eligible for the benefit of exemption under the said notification. The Commissioner (Appeals) has also extended the benefit of Notification No. 67/95 w.e.f. 16-3-95. The Revenue contended that the finished rolls are not inputs as these are parts of machinery but has not advanced any other reason for denying the benefit of notification. It has been held by the Larger Bench in the case of Union Carbide India Ltd. v. CCE, Calcutta-I, 1996 (86) E.L.T. 613 that the exclusion clause only confine to complete machine or units and did not cover parts thereof. Following the ratio of this decision the benefit of Notification No. 217/86 is available to the Respondents and w.e.f. 16-3-95 the benefit of Notification No. 67/95 will be available to the Respondents. Accordingly the appeal filed by the Revenue is rejected.
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2001 (12) TMI 174 - CEGAT, KOLKATA
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... ... ..... t to change with the rates to be decided in fresh tender No, Track 9 of 1994 under finalisation. Once the Contract contains such a clause, it cannot be claimed by the Revenue that the prices at the time and place of removal of the goods were final prices. We also note that in Contract dated 6-3-95 it is clearly mentioned that quantity of CMS Crossing ordered in the said Contract was in addition to 500 numbers for which ad hoc order was placed under Contract dated 29-12-1994. The fact that the appellants did not restore to provisional assessment under Rule 9B of the Central Excise Rules will not make the prices final in view of the specific mention in the Schedule annexed to the Contract. As the refund claim has been preferred within the statutory limit of six months specified in Section 11B of the Act, the refund of duty paid in excess on account of reduction in prices on finalisation thereof, is admissible to them. Accordingly, we allow the appeal with consequential relief.
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2001 (12) TMI 173 - CEGAT, KOLKATA
Modvat/Cenvat ... ... ... ... ..... t cannot be said that such waste and scrap has arisen in the hands of the job-worker, the same being invisible. Such invisible loss is covered by the provisions of Rule 57D and the appellants cannot be asked to reverse the Modvat credit taken on the inputs. 5. I also find that a recent decision of the Chennai Bench of the Tribunal in the case of C.C.Ex., Madras v. Bush Boake Allen (I) Ltd. reported in 2001 (47) RLT-712 (CEGAT-Che.) has held that the Glass Bottles broken at the premises of job-worker and not returned to the principal manufacturer, cannot be held to be covered by the provisions of Rule 57F, but the same would be covered by the provisions of Rule 57D and the principal manufacturer cannot be directed to reverse the credit taken in respect of such bottles. As such, by following the ratio of the above decision and in view of my discussion in the preceding paragraph, I set aside the impugned order and allow the appeals with consequential relief s to the appellants.
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2001 (12) TMI 170 - CEGAT, KOLKATA
Confiscation of conveyance ... ... ... ... ..... the Teak and the driver, who is an illeterate person, cannot be expected to verify the nature of the goods before loading the same in the truck. I also find that the penalty has been imposed upon the appellant by the Commissioner by observing that as owner of the vehicle it is not possible nor acceptable that his truck could be used for transporting goods without his knowledge. His claim of ignorance cannot be accepted. It is seen that the above observation is in the nature of assumption and is not flowing from any evidence on record. As such taking into account all these facts, I set aside the order of confiscation of truck and imposition of penalty upon the appellant. Appeal is allowed with consequential relief to the appellants.
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2001 (12) TMI 169 - CEGAT, NEW DELHI
Production capacity based duty ... ... ... ... ..... be paid at the rate fixed by the Central Government. Sub-section (4) comes into operation only when an assessee claims that the actual production of notified goods in his factory is lower than the production determined under sub-section (2). Thus, the provisions envisage (i) determination of capacity of production and (ii) actual production. How can a factory which has not commenced production can claim determination of capacity on the basis of actual production. It is not in dispute that the appellants commenced production of M.S. ingots of non-alloy steel only from 1-7-1999. As there is no actual production available, the question of determination of annual capacity of production on the basis of actual production does not arise. Accordingly we find no infirmity in the impugned order passed by the Commissioner. The ratio of the decisions relied upon by the learned Advocate is not applicable to the present matter as the facts are different. We, therefore, reject the appeal.
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2001 (12) TMI 168 - CEGAT, MUMBAI
Demand - Limitation ... ... ... ... ..... edings before us are barred by limitation. He also argued about the liability of the principal manufacture to pay duty. He also touched upon some points decided by the Supreme Court in Prestige Engineering Co. Ltd. v. Collector - 1994 (73) E.L.T. 497. 5. The learned DR would reiterate the grounds mentioned in the impugned order. 6. From the facts narrated above, it will be clear that as early as 1980 itself, the department knew the nature of the activity of the appellants. This has been described by us in the earlier portion of the order. In view of the above, the department cannot plead ignorance. It is therefore found that the parameters provided under the proviso to Section 11A(1) of the Act is not complied with in this case. The department could not have invoked the larger period of limitation in this case. Hence the impugned order passed by the adjudicating authority is bad in law. We therefore set aside the impugned order and allow the appeal. 7. Appeal stands allowed.
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2001 (12) TMI 167 - CEGAT, NEW DELHI
Penalty on Director of company for fraudulently obtaining advance licence ... ... ... ... ..... ying any fraud on the Customs authorities could be inferred. As is evident from the allegations made in the show cause notice and the material on record, we find that the fraud has been committed by Shri Shashi Bhushan, Proprietor of M/s. Efficient Export with the active support of Shri Mahesh Ganatra - a licence broker who helped him in obtaining the advance licences. The breach of the conditions of the advance licences had been committed by Shri Shashi Bhushan and not by the appellant. After the high seas sale of the goods, it is for Shri Shashi Bhushan to discharge his export obligations, as per the conditions of the advance licences. 14. In view of the discussion made above, the appellant, in our view, could not be penalised under Section 112(a) and (b) of the Customs Act, 1962. Therefore, the impugned order of the Commissioner of Customs qua the appellant cannot be sustained and the same is ordered to be set aside. The appeal of the appellant stands accordingly allowed.
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2001 (12) TMI 162 - CEGAT, MUMBAI
Production capacity based duty - Penalty ... ... ... ... ..... appeals. 4. Penalty in Appeal E/328/2001 is for short payment of duty during February and March, 2000. The explanation again is financial hardship, which we do not accept. We, therefore confirm the penalty. 5. Appeal E/329/2001 is concerned firstly with short payment of duty during December, 1999 and January, 2000. The duty short paid was Rs. 76000. In these circumstances, we reduce the penalty imposed on the short payment from Rs. 2 lakhs to Rs. 76000/-. Penalty of Rs. 50,000 has also been imposed on the ground that the applicant did not pay duty during the period 23-9-99 to 21-11-99. The Commissioner accepts that the furnace was closed during this period and grants abatement. Representative of the applicant relies upon the Trade Notice 103/97 issued by the Commissioner informing the trade that in such a situation payment of duty need not be made. In these circumstances, we set aside this penalty. 6. Appeals E/326, 327 and 328/01 dismissed. Appeal E/329/01 allowed in part.
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2001 (12) TMI 161 - CEGAT, MUMBAI
Adjudication - Precedent - Binding character ... ... ... ... ..... an adjudicator is bound by the higher Tribunal. However, if the defence and the notes in reply to the show cause notice, can satisfy an adjudicator that the facts of the case which are proposed to be followed is different and are not applicable in the facts before the adjudicator, then the adjudicator would be equally duty bound to consider the submission made before him. As in this appeal, on the remand order, I cannot find, as is being urged by the learned advocate, that the adjudicator to whom the matter is remanded, has been directed to follow the price of marble slabs instead of marble blocks. I find no merits in the present appeal and the same is rejected. 3. The matter is already delayed. I would consider granting additional time of two months to the adjudicator to decide the issue which has been lost by pursuing this appeal the time available to him to determine the matter afresh as per the orders of Commissioner (Appeals). 4. Appeal disposed off in the above terms.
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2001 (12) TMI 160 - CEGAT, NEW DELHI
Iron and steel products - Appeal - Demand and penalty - Limitation
... ... ... ... ..... 108.90 of the Tariff which was changed to 19.01 by the Commissioner (Appeals). In the present matter the products were held to be castings and the benefit of Notification No. 67/95 was disallowed. As it is being held that the products in question are nothing but castings the appropriate duty is payable by them. However, we agree with the plea made by the learned Advocate that no penalty is imposable and the demand has to be confirmed for to a period of 6 months preceding the date of issue of show cause notice. We order accordingly and direct the adjudicating authority to re-determine the duty liability and communicate the same to the appellants who will be liable to pay the same. As the issue involved was one of interpretation involving classification and in view of the findings in the impugned order that the Department was aware of the fact of manufacturing of castings by the appellants, the penalty imposed on them is set aside. The appeal is disposed of in the above terms.
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2001 (12) TMI 154 - CEGAT, CHENNAI
Redemption fine ... ... ... ... ..... to law. In the absence of such indications, the discretion exercised by an inferior tribunal should not be interfered with as observed by the Calcutta High Court in the case of Sheik Mohd Omar v. CC, AIR 1966 Cal. 237 at p. 247. 30. The judgments have strong bearing on the present case and the authority, while re-adjudicating the matter, should keep in mind the law laid down in these judgments and not to merely go by the fact that the Chief Commissioner in similar cases has imposed a very nominal fine and penalty on the party who did not claim ownership and washed off the hands at the earliest point of time, cannot be asked to take the goods on payment of redemption fine. They have clearly and categorically stated that they have nothing to do with the import of machineries. The law as stated above should be looked into while adjudicating the case. 31. Thus, all the above appeals are disposed of by remand for de novo consideration to the original authority on the above terms.
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2001 (12) TMI 152 - CEGAT, BANGALORE
Modvat/Cenvat ... ... ... ... ..... g the worn-out/broken parts of the kiln shell eligible to Modvat as kiln is a part of the plant in the factory. He said that since the items are used as kiln in turn as a part of the plant in the factory they are eligible for Modvat credit. 4. Both the sides fairly conceded that the issue with reference to the kiln has not been properly considered by the authorities below. In view of the submissions made by both sides, taking into consideration that there is no clear finding with reference to the kiln, I am of the view that matter requires to be examined on the limited portion. Accordingly, matter is remanded to the adjudicating authority to examine to what extent the items have been used in the kiln and subject to that finding he may pass an order providing an opportunity to the appellant. On the issue of eligibility of Modvat credit on the items which are used in the construction of factory building, the appellant fails. Thus this appeal is disposed off in the above terms.
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2001 (12) TMI 151 - CEGAT, BANGALORE
Modvat/Cenvat ... ... ... ... ..... es, concurring with the plea taken by the party, I hold that M.S. Plates are eligible to avail credit as capital goods in terms of Rule 57Q. Accordingly appellants succeed on this issue. 5. With reference to energy saving device, Smt. Radha Arun pointed out that there is no clear finding by the authorities below whether this has been used in saving energy of the lighting system or it was exclusively used in the factory. She submitted that factual position required to be examined. In the absence of finding, I am also of the view that eligibility of Modvat credit with reference to energy saving device is required to be examined by the adjudicating authority. He is directed to examine the factual position and to pass an appropriate order in accordance with law on providing an opportunity to the party. The party may substantiate his claim during the adjudication proceedings. Thus this appeal is allowed by way of remand with reference to energy saving device. Ordered accordingly.
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