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Showing 361 to 380 of 468 Records
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2003 (8) TMI 149 - CESTAT, MUMBAI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... on the strength of invoices/challans issued from the depots of manufacturers and these were held to be valid documents under Rule 57G in the light of Notification No. 32/94. The Tribunal s decision in the case of CCE, Chandigarh v. Ajit Cotton Ginning PDSR Mills - 1997 (90) E.L.T. 332 is also distinguishable as in that case credit was availed on the strength of invoice-cum-challans issued by IOCL which was a valid duty paying document for availing credit under Rule 57G of the Central Excise Rules. 3. In the light of the above discussion I hold that the appellants are not entitled to credit of the amounts in question, uphold the impugned order and reject the appeal.
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2003 (8) TMI 146 - CESTAT, NEW DELHI
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... ... ..... ants by holding that they did not challenge the assessment order and hence were not entitled to the refund. He apparently travelled beyond the scope of the issue before him. He was only required to decide, as to whether the order passed by the adjudicating authority directing the credit of the refund amount in the Consumer Welfare Fund by invoking the provisions of Section 28D of the Customs Act, was proper or not. He could not go beyond that and dismiss the appeal of the appellants by referring to the finality of the assessment order, especially when the Revenue did not challenge before him the validity of the order-in-original sanctioning the refund. Therefore, in our view, the impugned order passed by him cannot be held to be legal and as such the same is set aside and the matter is sent back to the Commissioner (Appeals) for fresh decision, in the light of the observations made above, in accordance with law. 4. The appeals of the appellants stand allowed by way of remand
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2003 (8) TMI 144 - CESTAT, KOLKATA
Service tax - Penalty ... ... ... ... ..... creating the tax liability against the respondents, but the same would not result in leviability of any penalty upon the respondents. Accordingly, he has set aside the penalty. The Revenue is aggrieved with the above portion of the order and has challenged the same in the present appeal. 2. After hearing both sides duly represented by Shri A.K. Mondal, learned SDR for the Revenue and Shri G.K. Mundhra, learned Consultant for the respondent Company, I find that the Tribunal in the case of M/s. Anil Chemicals and Industries Ltd. v. Commissioner of Central Excise, Raipur reported in 2002 (146) E.L.T. 147 (T) 2002 (51) RLT 1037, has held that in view of the retrospective amendment in the Finance Act, 2000, the demand of Service Tax is sustainable against the assessees, but no penalty can be imposed inasmuch as the retrospective amendment cannot bring about penal, consequences. Inasmuch as the issue is decided, I do not find any merits in the Revenue s appeal and reject the same.
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2003 (8) TMI 142 - CESTAT, CHENNAI
Penalty - Custom House Agent ... ... ... ... ..... case before me. 5. In view of the judgments delivered by the Tribunal cited by the counsel, and in view of the fact that the employee of the CHA who had processed the papers have been held having no knowledge of fraudulent export and no penalty was imposed on him and further the consignment has been found to be different than the one which was stuffed and sealed under customs supervision and the duty of the CHA ceases after the goods have been cleared out of customs charge and handed over to the shipping agency. 6. In view of the well settled legal position and respectfully following the above cited judgment rendered by the Tribunal, I set aside the order of the Commissioner imposing penalty of Rs. 25,000/- on Shri K.L. Alagu Murugappan, CHA under Section 114(i) and 114(iii) of the Customs Act, 1962. 7. The operative portion of the order was pronounced in the open court on 25th August, 2003. In case, if the appellant approach, the order can be given dasti. Order accordingly.
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2003 (8) TMI 140 - CESTAT, NEW DELHI
Cenvat/Modvat - Inputs - Penalty ... ... ... ... ..... he definition clearly indicates that inputs are required to be used within the factory of production. The judgment in the case of Jaypee Rewa Cement v. CCE 2001 (133) E.L.T. 3 (S.C.) is not applicable as the Rule which was interpreted by the Supreme Court was Rule 57A of Central Excise Rules and reading of the said Rule clearly showed that the inputs were to be used in or in relation to the manufacture of the final products. Supreme Court observed that Rule 57A(1) does not, in any way, specify that inputs have to be utilized within the factory premises . With the change in the definition of inputs wherein specific phrases within the factory of production has been used, which makes it necessary that the inputs are used within the factory of production the judgment in Jay Pee Rewa is not applicable. Accordingly, the Appeal is rejected as far as disallowance of the Modvat credit is concerned. The penalty is, however, set aside as the issue involved is of interpretation of Rule.
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2003 (8) TMI 139 - CESTAT, BANGALORE
Rectification of mistake ... ... ... ... ..... tion of such plea as it was held by the Tribunal in the case of Metal Extruders (I) Pvt. Ltd. 1985 (19) E.L.T. 198 (Tri.) . 3. Shri Shivadass submitted that though appeal has been allowed in total in favour of the assessee, he pointed out that one of the issues has not been dealt with in detail as rightly pointed out by the other side and relying upon the decision of the Tribunal in the case of Richardson and Cruddas Ltd. v. CCE, Mumbai reported in 2002 (145) E.L.T. 168 (T) 2002 (49) RLT 239, he said that not giving a finding amounts to a mistake apparent from the record. 4. We have carefully considered the submissions made by both sides. In view of the conflicting views expressed in the decisions referred to by both sides and particularly in view of the fact that the order was dictated in open court, we do not find any substance in the applications filed by the respective sides to rectify the mistake as pointed out. In the result, these two applications are hereby rejected.
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2003 (8) TMI 136 - CESTAT, NEW DELHI
Cenvat/Modvat ... ... ... ... ..... same indicates that duty was paid not only on the labour charges but also on the value of the goods. The benefit of this payment went to the Revenue. What the appellants have done is to take credit of this duty, within the statutory period of limitation, on the strength of the invoice, which was a valid document for the purpose at the material time. The Department, in insisting on payment of duty by the job worker, recognized his activity as manufacture. Therefore, it is not open to the Revenue to rely on the decisions cited by the DR. The legality or otherwise of payment of duty by the job worker is not any concern of the appellants. As far as the appellants are concerned, they have taken Modvat credit of the duty paid on the capital goods received by them under a valid document and used in the manufacture of final product. This action is in accordance with law. I am, therefore, unable to sustain the impugned order. The impugned order is set aside and the appeal is allowed.
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2003 (8) TMI 135 - CESTAT, MUMBAI
Modvat/Cenvat - Modvat on capital goods ... ... ... ... ..... e Machine which is used for cutting excess metal for manufacture of nuts, bolts, washer, keys etc. for onward use in the machinery of the sponge iron plant. In the light of the Tribunal s decision in the assessee s own case cited supra, wherein the credit was held to be admissible to H.S.S. drill used in the Lathe machines, I hold that credit is admissible on this item. The reliance placed by the ld. D.R. in the case of Usha Ispat Ltd. 2000 (125) E.L.T. 1184 in which it has been held that in the entire scheme of manufacture of pig iron by M/s. Usha Ispat there is no warrant or requirement for Lathe machines, is misplaced as the appellants herein are using the Lathe machines for the purpose set out above. 5. In the result, I hold that the appellants are entitled to credit on cement, H.S.S. hand tap under the provisions of Rule 57Q and on chemical formulations under the provisions of Rule 57A of the Central Excise Rules, 1944, set aside the impugned order and allow the appeal.
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2003 (8) TMI 132 - CESTAT, CHENNAI
Demand - Clubbing of clearances - Dummy units ... ... ... ... ..... of difference. As the learned Member (Judicial) has remanded the matter for de novo consideration, I am inclined to accept the view for remanding the matter. However, the Commissioner shall take into consideration the findings recorded by the majority in this order on the point pertaining to show cause notice being bad in law and other points noted in the majority order. The matter shall be placed before the bench for passing majority. Sd/- (S.L. Peeran) Member (J) MAJORITY ORDER In the light of the majority view, it is held that the clearance of M/s. Reliable Corporation are not to be clubbed with the clearances of M/s. Poly Resins. Longer period of limitation also cannot be invoked in this case for demand of duty. As regards question of clubbing of clearances of M/s. PR with the clearances of M/s. Abbas and Co., in the matter is remanded to the Commissioner for decision. Penalties imposed are also set aside. Sd/- (Jeet Ram Kait) Member (T) Sd/- (Archana Wadhwa) Member (J)
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2003 (8) TMI 131 - CESTAT, MUMBAI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... ceived a reply from the customs authorities indicating that the case is very old and they are not able to trace the original bill of entry to be able to supply a reconstructed bill of entry to the appellants. 2. It is the appellants case that the credit was taken by them on 26th November, 1994 on the basis of triplicate copy of the bill of entry and that they had also shown the triplicate copy to the audit party on 8-4-1995. It is their claim that only subsequently, the triplicate copy has been misplaced. They have, however, produced a xerox copy of the bill of entry certified by the customs authorities. In view of the fact that the original copy of the bill of entry is not traceable, the appellants are directed to submit an indemnity bond securing the duty amount against possible misuse of the triplicate copy. Subject to such bond being filed, they will be allowed to avail the credit which they have already taken. Miscellaneous application is disposed of in the above terms.
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2003 (8) TMI 130 - CESTAT, NEW DELHI
Cenvat/Modvat - Modvat on capital goods ... ... ... ... ..... ision has been upheld by the Supreme Court vide 2002 (139) E.L.T. A294 . Following this ratio, I hold that, for want of identity of the machines (parts whereof are claimed to have been replaced with the sheets and plates in question) under CET Tariff, it is a futile exercise to attempt to decide as to whether the sheets and plates are components or spares covered by Sl. No. 5 of the table annexed to Rule 57Q. This being the position, the other decision cited by ld. Counsel and the case law cited by ld. DR are not applicable. In the result, I have no option but to uphold the denial of Modvat credit in respect of the sheets and plates. Insofar as thermocouples are concerned, the credit disallowed is to the extent of only Rs. 517/- and there is no serious challenge to the finding recorded by the Commissioner (Appeals) that these goods, falling under Heading 90.33 of the CET Schedule, do not qualify to be capital goods for Modvat credit. 6. In the result, the appeal is rejected.
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2003 (8) TMI 129 - CESTAT, MUMBAI
Cenvat/Modvat ... ... ... ... ..... edit while processing grey fabrics and availed of credit under Rule 57A(1) in respect of processed fabrics that it received. Dealing with other changes in Section 5, the trade notice provides in clause (ii) of paragraph 5.2 that in the case of partially processed fabrics, the credit of actual duty paid earlier on partially processed fabrics will be available under sub-rule (1) of rule 57A. This is in consonance with the provisions of notification that we have referred to earlier. 4. The order of the Commissioner (Appeals) does not indicate why, by applying these provisions, the appellant could not simultaneously avail of deemed credit as well as actual credit under Rule 57A(2). He has ignored. the provisions of paragraph 5.2 and does not appear to have considered separately, as required to do, the processed fabrics and grey fabrics that the appellant received. The appellant was entitled to do what it did. 5. The appeal is accordingly allowed and the impugned order set aside.
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2003 (8) TMI 128 - CESTAT, BANGALORE
Valuation (Central Excise) ... ... ... ... ..... ence fee for right to use being recovered, especially when there is no charge and/or allegation that costs of hardware have been transferred on to such recoveries now being proposed to be added to the value. (f) Since the loading of the entire value of the tangible Operational/Application Software cannot be loaded on to the value of the computers in any of the situations, in which the clearances could be made, the demands as made, cannot be upheld, therefore the penalties as arrived at cannot be sustained. 5. In this view of the findings, the appeal No. E/410/2003 is required to be allowed after setting aside the order. 6. Appeal Nos. E/1307-1308/2002 filed by M/s. Compaq has to be allowed, since in that case the operational/application softwares have been supplied on tangibles separately. The value thereof, cannot be added for the purposes of duty, in view of the findings arrived at hereinabove. This appeal is also allowed after setting aside the order. Ordered accordingly.
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2003 (8) TMI 124 - CESTAT, BANGALORE
Cenvat/Modvat - Demand - Penalty and Interest ... ... ... ... ..... v)/57AH(ii) read with Sec. 11AC of Central Excise Act, 1944, it is found that the same cannot be upheld, for recovery of an amount since the Rules and Sections relied upon by the adjudicator to impose the 100 mandatory penalty cover only input credit and duty and not an amount under Rule 57CC . (d) The penalty under Rule 173Q of Central Excise Rules, 1944 also cannot be upheld since Rule 173Q(i)(bb) is applicable only to taking of credit or duty or money in respect of inputs, capital goods and it is not applicable to an amount which is required under Rule 57CC to be reversed. (e) Since interest under Rule 57-I(v)/57AH(i) of Central Excise Rules, 1944 read with Sec. 11AB of Central Excise Act, 1944 is required to be imposed only in case of duty and credit and the present recoveries not being in the nature of duties and credit, the interest as ordered cannot be upheld. 6. In view of our findings, the order is set aside and appeals allowed with consequential relief, as per law.
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2003 (8) TMI 120 - CESTAT, NEW DELHI
Valuation (Central Excise) - Transport charges - Provisional assessment ... ... ... ... ..... le. The claim has to be permitted only on the basis of actuals. Since the Tribunal has already dwelved upon this issue, after hearing the said argument in Revenue s appeal, in terms of the decision referred to at 2000 (116) E.L.T. 622 (T) in the case of the appellants themselves, this finding of the Commissioner (Appeals) has to be set aside. 5. So far as the expenditure towards transportation are concerned, it has come on record that as against the actual expenditure ranging between Rs. 15/- to Rs. 35/- per crate, the claim has been restricted to Rs. 4.60 and Rs. 6.60 per crate. Therefore, there is no case for any addition to be made in the declared price. 6. So far as the findings in respect of Canister is concerned, the order-in-appeal does not indicate as to what is wrong with the findings arrived at by the Assistant Commissioner. Since no reasons are given to support this finding, the same is vacated. 7. Accordingly, we set aside the impugned order and allow the appeal.
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2003 (8) TMI 118 - CESTAT, NEW DELHI
Cenvat/Modvat ... ... ... ... ..... used only as a water storage. No integral connection between such storage and the manufacture of cement has been brought out in this case. The cited decision is distinguishable on facts. Hence the denial of Modvat credit to the extent of Rs. 34,305/- on Syntex water tank cannot be interfered with. 3. In the result, the order of the lower appellate authority is upheld to the extent it relates to items 1, 2 and 4 listed above and set aside to the extent it relates to the remaining item. The appeal (No. 1904) is allowed only in respect of M.S. Pipes and Pipe Fittings. 4. In the appeal No. 1905, the capital goods in question are goods which were used in mines as also M.S. pipes and pipe Fittings. The credits in question were taken during March-May, 1996. For the reasons already noted, the credit taken on the capital goods used in mines will stand disallowed and that taken on the M.S. Pipes and Pipe Fittings will stand allowed. The appeal accordingly stands allowed in part only.
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2003 (8) TMI 116 - CESTAT, NEW DELHI
Refund - Limitation ... ... ... ... ..... felt that no case existed against them. The Department can also not claim that the refund claim does not pertain to the searches conducted in March, 1997 as the Deputy Commissioner after receipt of the claim returned the refund claim under letter dated 13-6-2000 stating therein that the refund claim filed by the Appellant was premature as the show cause notice dated 29-3-2000 had been issued by the Commissioner. As held by the Gujarat High Court in the case of Parle International (supra), Rule 233(b) of the Central Excise Rules is applicable at the time of clearance of goods and not at any time thereafter. Those provisions cannot be applied in a case where dispute was subsequently raised that the duty paid by the assessee was less than due. In view of this, we hold that the refund claim filed by the Appellants is not hit by time limit specified in Section 11B of the Central Excise Act. Accordingly, we set aside the impugned Order and allow the Appeal filed by the Appellants.
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2003 (8) TMI 115 - CESTAT, BANGALORE
Refund of pre-deposit ... ... ... ... ..... rcumstances of the case, we find that refunds of the pre-deposits made as ordered by a superior forum like the High Court, CEGAT and even the Commissioner (Appeals), do not call for a formal refund application to be filed by the pre-depositor to obtain the amount back in compliance of such judicial/quasi judicial orders. Therefore, we are not in an agreement with the findings that the refund payment can be denied, merely on the grounds that TR 6 challan (original copy) has not been filed along with a refund application. (d) On a loss or destruction of TR 6 challans vide which pre-deposit compliances were made and refunds are admitted, such payments could be effected, by following the procedures, of Indemnity Bonds given in the Cash Account Treasury Manuals. In this case when refunds are admitted, payment should be effected as per the procedure prescribed in the Departmental Manuals. Refusal of payment cannot be approved. 3. Thus this appeal is disposed of in the above terms.
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2003 (8) TMI 113 - CESTAT, NEW DELHI
Smuggled goods - Confiscation and penalty ... ... ... ... ..... Department. No doubt, Shri S.K. Khandelwal, Proprietor of the appellants firm, did not dispute the Chinese origin of the goods, but the goods were at that time and even now are available in the open market. These were not, at the relevant time, even the notified goods. Mere non-production of the bill by the appellants which is a small concern being run by its sole Proprietor, Shri S.K. Khandelwal, could not lead to an inference that he had smuggled those goods. It was on the Department, as observed above, to prove the smuggled character of the goods, especially when these are available for sale and purchase in the open market. Since the Department has failed to discharge this burden, neither the seizure of the goods could be ordered nor any penalty could be imposed on the appellants. Therefore, the impugned order cannot be sustained and the same is set aside. The appeal of the appellants accordingly stands allowed with consequential relief, if any, permissible under the law.
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2003 (8) TMI 111 - CESTAT, NEW DELHI
Precedent - Modvat - Deemed credit ... ... ... ... ..... t an exemption notification. The Tribunal in the case of Shivagrico Implements Ltd. v. C.C.E., Jaipur-I, 2002 (149) E.L.T. 716 (Tri. - Del.) 2001 (44) RLT 853 , has also observed that for the interpretation of notification in question i.e. 58/97-C.E., the rule of strict interpretation laid down by the Apex Court is not applicable. Moreover, the judgment of the Tribunal in the case of Delhi Steel Indus., supra, in which the interpretation of the notification has been made, so far holds good, is to be accepted by the Revenue. The Commissioner (Appeals), as observed above, has rightly followed the same. 5. In view of the discussion made above, in my view, no illegality has been committed by the learned Commissioner (Appeals) by following the above referred Tribunal s judgment which squarely covers the case of the respondents. Therefore, the impugned order passed by him is perfectly valid and the same is upheld. 6. The appeal of the Revenue being without any merit, is dismissed.
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