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Case Laws
Showing 341 to 360 of 445 Records
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2001 (12) TMI 112 - CEGAT, BANGALORE
Penalty - Interest ... ... ... ... ..... er sections 11AB and 11AC of the Act respectively when the adjudication proceedings were not initiated under 11A ibid of the Act. On the other hand Smt. Radha Arun justified the action of the Department in levying the interest under 11AB relying upon the decision of the Supreme Court in the case of Roche Products Ltd. reported in 1989 (44) E.L.T. 194 (S.C.). Sh. P.C. Anand submitted that the decision relied upon by DR is not relevant to the issue involved here in this case. 5. On going through the submission made with reference to the facts, I am of the view that interest is not leviable under section 11AB of the Act since the proceedings have not been initiated under 11A, following the decision of the Tribunal in Eicher Demm referred to above. 6. Accordingly penalty is reduced to Rs. 1,00,000/- as against Rs. 3,35,023/- under Rule 57U(6) and levy interest under Section 11AB is set aside. But for this modification, the impugned order is otherwise upheld. Ordered accordingly.
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2001 (12) TMI 111 - CEGAT, COURT NO. I, NEW DELHI
Appeal to the Commissioner (Appeals) - Scope ... ... ... ... ..... is that when the Assistant Commissioner has finalised the assessment and when order is appealable, Revenue can challenge this order by way of appeal. 6. In this case a show cause notice dated 8-1-97 was issued for disallowing certain deductions in respect of freight and rent on containers. The Commissioner of Central Excise vide order dated 21-8-97 dropped the proceedings and accepted the factory gate sale price as the normal price under Section 4 of the Central Excise Act and directed the Assistant Commissioner to finalise the assessment. Admittedly, no appeal is filed against this order passed by the Commissioner of Central Excise. Therefore, when the Assistant Commissioner finalised the assessment in consequence to the order passed by the Commissioner Central Excise, the Commissioner (Appeals) on appeal cannot go beyond the scope of the earlier adjudication order which was not challenged by the Revenue. Therefore, the impugned order is set aside and the appeal is allowed.
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2001 (12) TMI 110 - CEGAT, COURT NO. II, NEW DELHI
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... ... ..... imported from abroad it cannot be said that it is being used in the factory of production and as such the benefit of the notification or the tariff rate for subsequent years is not available to the appellants. 4. We have considered the submissions of both the sides. Initially the notification and subsequently the tariff heading itself provides nil rate of duty to the copper waste and scrap used within the factory of production for the manufacture of specified products. It is not in dispute that the impugned scrap has been imported by the appellants from foreign country and as such the impugned scrap had not been generated in the factory of the appellants. In view of this it cannot be said or claimed by the appellants that copper waste and scrap has been used within the factory of production. As the condition of the notification or the tariff heading has not been satisfied the benefit of the same cannot be extended to the appellants. Accordingly both the appeals are rejected.
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2001 (12) TMI 109 - CEGAT, NEW DELHI
Rectification of mistake - Modvat - Capital goods ... ... ... ... ..... heir final products viz. medicines. This is a question which has to be looked into and settled at the level of the adjudicating authority on the basis of proper physical verification. If it be found that the air-conditioners were used to regulate the room conditions of temperature, humidity and/or other factors so as to make them congenial to the process of manufacture of medicines in the factory, then the air-conditioners would qualify for Modvat credit in terms of Clause (a) ibid. 4. We, therefore, set aside the order of both the lower authorities and allow this appeal by way of remand, directing the adjudicating authority to decide afresh on the above question after proper verification. The adjudicating authority shall pass a speaking order, after affording a reasonable opportunity of being heard, to the assessee. 7. Final Order No. A/1031/99-NB (DB), dated 20-10-99 2000 (115) E.L.T. 800 (Tribunal) passed by the Bench in appeal No. E/905/97-NB will stand amended as above.
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2001 (12) TMI 106 - CEGAT, NEW DELHI
Penalty - Evidence - Corroborative - Confession - Natural justice - Cross-examination - Seizure
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2001 (12) TMI 104 - CEGAT, NEW DELHI
Refund, of duty paid subsequent to clearance ... ... ... ... ..... incidence of duty had been passed on by the party to their customer. The allegation, on the other hand, is in the nature of a surmise inasmuch as the department, in the show cause notice, stated that incidence of duty might have been passed on to the buyer. There is no evidence on record to show that the appellants passed on the incidence of duty (which they paid long after the clearance of the goods) to their buyer. Thus the department s burden under Section 11B of the Central Excise Act for establishing unjust enrichment against the party has not been discharged. The refund claim is, therefore, not hit by unjust enrichment. Punjab Beverages (supra) supports this conclusion. I, therefore, hold that the impugned order is unsustainable in law. I set aside the impugned order and direct the Assistant Commissioner to effect the refund of the duty amounts as early as possible, at any rate within a period of three months from the date of receipt of a certified copy of this order.
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2001 (12) TMI 103 - CEGAT, NEW DELHI
Refund - Returned goods ... ... ... ... ..... l stage when remade goods were cleared. There was no dispute on these two aspects. I further note that similar issue came up before this Tribunal in the case of Supreme Industries cited above and the Tribunal in that case held that refund was admissible to the appellant under Rule 173L and directed the Assistant Collector to reconsider their refund claim and allowed the refund claim by the appellant therein. In the instant case another issue of unjust enrichment has also been raised. I find that unjust enrichment will not be applicable in the instant case inasmuch as the goods were returned and clearance of the goods subsequently was also made on payment of duty. The goods did not go to the consumer for consumption and therefore, passing on burden of duty to the consumer did not arise in the present case and hence there was no question of unjust enrichment etc. 6. Having regard to the above discussion I uphold the impugned order and reject the three appeals filed by Revenue.
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2001 (12) TMI 100 - CEGAT, COURT NO. I, NEW DELHI
Valuation (Customs) - Redemption Fine - Penalty ... ... ... ... ..... also to be noted that the importer had also agreed for enhancement of the price based on contemporaneous prices available with the Department. We, therefore, find no merit in the contention raised in the appeal challenging the valuation and seeking the refund of the differential duty paid by the appellants on enhancement. 3. Coming to the challenge on the imposition of redemption fine and penalty we find there is some merit in the contention raised by the appellant. Assessee s explanation for the excess in length of the material found on import can not be totally rejected. So also it is a case where the party had agreed for enhancement of the valuation on the basis of the materials available with the Department. Under such circumstances we are of the view that the imposition of redemption fine as well as penalty may not be fully justified. We, therefore, delete that portion of the orders impugned imposing penalty as well as redemption fine. The appeals stand partly allowed.
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2001 (12) TMI 98 - CEGAT, COURT NO. III, NEW DELHI
Tyres of sizes ... ... ... ... ..... off-the-road and in the new tariff, the entry is of a kind used on vehicle or equipment designed for use off-the-road . The respondents had produced evidence to show that the tyres, in question, are used in the vehicles like trucks, dumpers, etc. which have both OTR as well as road application. The respondents have also shown that in ordinary trade parlance, such tyres are understood to be tyres for use in truck, dumpers and not exclusively for fitment in the vehicles which are exclusively used in OTR application. In this situation, we are of the view that tyres, in question, are rightly classifiable under T.I. 16-I(b)(i) under the old tariff and under Chapter Heading 4011.60 of the new tariff. 12. As the issue of classification is decided in favour of the respondents, we take up the appeal for final disposal and we find no infirmity in the impugned order where the adjudicating authority classified as claimed by the respondents. The appeal, filed by the Revenue is rejected.
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2001 (12) TMI 97 - CEGAT, COURT NO. III, NEW DELHI
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... ... ..... ol) Order, 1987 was not available one has to consider as to how the term was understood hitherto and what was the meaning attributed to bulk drugs as specified under the First Schedule and bulk drugs outside the First Schedule. It is relevant to note that even though the Drugs (Prices Control) Order, 1987 was repealed on 6-1-95, notifications issued in exercise of the powers conferred by sub-section (1) of Section 5A of the Central Excises and Salt Act, 1944 by the Central Government were not cancelled on 6-1-95. For this reason also we hold that the benefit of concessional rate of duty available to manufacturers in respect of Serial No. 6 of the Table annexed to Notification No. 6/94-C.E., dated 1-3-94 will be available during the period from 6-1-95 to 9-2-95. We agree with the view taken by the South Regional Bench, Bangalore of this Tribunal in Karnataka Chemsyn Ltd. v. CCE, Bangalore 2001 (138) E.L.T. 697 (T) 2001 (44) RLT 407 . The question referred is answered as above.
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2001 (12) TMI 96 - GOVERNMENT OF INDIA
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... ... ..... y if time was running out, issue show cause notice answerable to the bond accepting authority and forward to that authority complete details of clearance effected for taking appropriate action in the matter at his end. However, the Asstt. Commissioner in charge of the factory of clearance for export could not take upon himself to demand duty or impose penalty under Rule 14A of the CER, 1994, in the facts and circumstances of the instant case. Even now it is not too late, if the bond(s) is/are in force, to observe the appropriate procedure. But that would not validate the lower authority action in the present case. 5. Applying the ratio of the above decision to the facts of the present case, which are covered in all fours, Govt. would not like to interfere with the impugned orders of the Commissioner (Appeals). However, the original authority shall bear in mind the observations contained in the preceding paragraph for taking appropriate decisions in the matter. 6. So ordered.
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2001 (12) TMI 95 - HIGH COURT OF JUDICATURE AT MADRAS
Production capacity based duty ... ... ... ... ..... at the capacity of production, which is absolutely necessary to levy and collect duty of excise under Section 3A of the Act. So, the said rules cannot be adopted for determination of excise duty as they cannot level the correct capacity of production of the factory for the purpose of levying excise duty. So, the Rule 3 of the rules issued in the Notification No. 42/1998 cannot be sustained as they are ultra vires Section 3A of the Act. 14.The Order rules issued under other Notifications which are impugned in the other writ petitions are only based on the rules issued in Notification No. 42/1998 and so the reasoning given above will apply to these rules also. So they also cannot be sustained consequently, they are set aside. But the petitioners are liable to pay duty of excise under Section 3 of the Act or under any other provisions contemplated for the same. 15.For all the foregoing reasons, these writ petitions are allowed accordingly. No costs. Connected W.M.Ps. are closed.
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2001 (12) TMI 94 - HIGH COURT OF JUDICATURE AT MADRAS
Compounded levy scheme - Textile Processors ... ... ... ... ..... one, was not able to utilize it for public purposes. When appellants had the advantage of keeping the amount of tax without paying it to the State exchequer only because the High Court granted orders restraining the State from recovering that amount from the assessee, no act of the Court shall cause prejudice to any party. The prestine doctrine couched in the maxim, actus curiae reminem gravabit has ever remained a salutary and guiding principle. So the challenge of the petitioners regarding the levy of interest at 36 under the impugned Rule cannot be sustained. 8.But, as held by the Apex Court in 1998 (99) E.L.T. 33 (supra), the penalty mentioned in the abovesaid Rule should be taken as only the maximum amount which would be levied and the assessing authority has discretion even to levy lesser amount depending upon the facts and circumstances of each case. 9.With the above observations, these writ petitions are disposed of accordingly. No costs. Connected W.M.Ps. are closed.
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2001 (12) TMI 93 - HIGH COURT OF JUDICATURE AT ALLAHABAD
Reference to High Court - Modvat ... ... ... ... ..... not be in his name? (v) Whether, in the absence of transfer by title by endorsement in the documents of title, the property in the goods is never transferred by the endorser in favour of the endorsee and the Appellate Tribunal was not justified in denying the benefit of Modvat credit to the applicant on the ground that they were not concerned with the nature of the endorsement made by M/s. P.C.T. Ltd. (vi) Whether, there being no sale of the inputs to the applicant by M/s. P.C.T. Ltd. or anyone else, there can be no invoice in the name of the applicant, hence the applicant was entitled for the benefit of Modvat credit and since P.C.T. Ltd. is not a dealer, hence it was not required to follow the procedure in terms of Rule 57GG? 3.We accordingly directed the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi to draw up statement of the case and refer the aforesaid questions to this Court for its opinion. 4.The reference application stands disposed of accordingly.
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2001 (12) TMI 92 - HIGH COURT OF GUJARAT AT AHMEDABAD
Reference Application ... ... ... ... ..... atio of the judgment of the Apex Court in the case of State of Madhya Pradesh v. Bharat Heavy Electricals Limited, 1998 (99) E.L.T. 33 , wherein while interpreting the same phrase occurring in Section 7(5) of Madhya Pradesh Entry Tax Legislation, it has been laid down by the Apex Court that the phraseology used in the provision only lays down the maximum amount of penalty which could be levied the discretion to levy penalty of a lesser amount is not taken away. In light of the similar provision found in the Act which the Apex Court was called upon to interpret, even if the question of law arises, the same stands concluded and does not require to be referred or the opinion of this Court. This application is rejected.
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2001 (12) TMI 91 - HIGH COURT OF JUDICATURE AT MADRAS
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... ... ..... y consequence must follow and the detention would then be liable to the vitiated. This decision applies squarely to the instant case. Therefore, for the same reasons, we quash the detention order and the detenu is directed to be set at liberty, if he is not required in any other case by any other authority . 6.From the above laid principles, it is clear that the customs authorities are bound to place their show cause notice and the reply received from or on behalf of the detenu before the confirming authority, in case if the reply from the detenu is received much earlier to the confirmation of the detention order by the confirming authority. Consequently the non-placement of those relevant documents before the confirming authority vitiates the order of detention. 7.For the reasons stated above, the H.C.P. is allowed and the order of detention is set aside. The detenu is directed to be set at liberty forthwith, unless his presence is required in connection with any other case.
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2001 (12) TMI 90 - HIGH COURT OF DELHI
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... ... ..... reement with the submission advanced on behalf of respondents by Ms. Mukta Gupta, learned counsel for the respondents that the reference to the earlier detention order was only by way of introduction or preamble and the order of detention has been passed on the prejudicial activity of the petitioner dated 4-11-2001. 13.The facts of Chhagan Bhagwan Kahar s case (supra) would have no application to the present case since the findings in that case were based on the admission by the detaining authority that it had considered the earlier detention orders while the same is absent in the present case. 14.The issue whether grounds are severable and can be relied upon within the meaning of section 5A of the Act would not arise for consideration in view of our conclusion that there is no reliance on the earlier detention orders for arriving at the subjective satisfaction before the passing of the present order. 15.We thus find no merit in the present petition and the same is dismissed.
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2001 (12) TMI 89 - HIGH COURT OF JUDICATURE AT BOMBAY
Confiscation - Natural justice ... ... ... ... ..... t who was responsible to maintain record of the case in question and for the loss thereof and initiate disciplinary action against the person so as to bring him to the book with further direction to forward report thereof to this Court for record and for showing compliance of the directions issued herein. 19.Having expressed our anguish, we quash and set aside the action of respondent No. 1 and allow this petition with cost and make the rule absolute in terms of prayer clauses (a), (b) and (c). The cost stands quantified in the sum of Rs. 10,000/- to be paid to the petitioners, within 30 days from the date of receipt of writ of this Judgment. The respondent No. 4 shall, however, be entitled to recover the cost personally from the person and/or persons who may found guilty after due enquiry as directed hereinabove. The Prothonotary and Senior Master is directed to send copy of this judgment to the Commissioner of Customs, Mumbai for record and necessary action. C.C. expedited.
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2001 (12) TMI 88 - HIGH COURT OF DELHI
Appeal to Appellate Tribunal - Jurisdiction - Limitation ... ... ... ... ..... ers passed by all appellate authorities as well. 17.However, as noted hereinbefore three Judges Bench of the Supreme Court in Kunhayammed and Ors. (supra) has taken a different view. 18.When an appeal can be taken up for consideration on merit, the delay in filing the same must be condoned. If the application for condonation of delay is dismissed, an appeal may lie there against but the only question, which can be raised in the appeal, would be as to whether the Commissioner of Appeals was justified in refusing to condone the delay. No other question, far less, any question on merit of the matter could be gone into by the Appellate Tribunal. 19.In view of this matter, we are of the opinion that as the Commissioner of Appeal could not have condoned the delay beyond a period of three months, the Appellate Tribunal cannot be said to have committed any error of law in upholding the order of the Commissioner of Appeal. There is no merit in this appeal. It is dismissed accordingly.
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2001 (12) TMI 87 - HIGH COURT OF DELHI
EXIM - Import Licence ... ... ... ... ..... iew of the matter, the stand taken by the respondents, in so far as it rejects the petitioner s application for issuance of Value Based Advance Licence on the basis of the norms which came into force on 1st of April, 1997 cannot be countenanced by the provisions of Clause 66. Accordingly, the writ petition is entitled to succeed and is thus allowed, directing the respondents to process the application of the petitioner for approval in accordance with law and Clause 66 which states that in case the petitioner s application is approved, it shall be entitled to invoke the provisions of Clause 66 for issuance of a Value Based Advance Licence on the input/output and value addition norms in force on the date of receipt of the application, i.e., 18th of March, 1997. The petitioner s application be processed within a period of eight week s from the date of receipt of this judgment. 9.In view of the above, the writ petition stands allowed as indicated above with no orders as to costs.
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