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Case Laws
Showing 381 to 400 of 520 Records
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2004 (5) TMI 186 - CESTAT, MUMBAI
Valuation (Customs) - Transport cost - Transhipped goods ... ... ... ... ..... while working out the demand for differential duty in the remand proceedings. (b) The remaining imports will be there where the mother vessel discharged the cargo at a distant port such as Mumbai and Bhavnagar from where the cargo was carried in barges to jetties situated at Hazira (Magdalla Port). The question which needs to be determined in remand proceedings is whether such movement from one port to another is transshipment or not. If the movement from one port to another is in fact transhipment , the cost of barge operation would be includible in the assessable value. If, however, such is not the case, the cost of barge operations would not be includible. As my learned brother has observed, the mere mention of the word transhipment on some documents is not determinative of this issue. What the adjudicating authority is inter alia required to do in remand proceedings is whether or not such movement from Mumbai/Bhavnagar to Hazira was in fact and in law transhipment or not.
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2004 (5) TMI 184 - CESTAT, MUMBAI
Moped tyres ... ... ... ... ..... t then, mis-use is not with the knowledge of the appellant. No liability therefore can be fastened on the appellant in this regard. What has been cleared by the appellant is clearly marked as moped tyre. 11.Thus on merits we find that the department has failed to make out a case that the appellant availed of the concessional rate of duty by mis-declaring their product. 12.The larger period of limitation cannot be invoked in this case for two reasons. The first is that the unit was under physical control upto November 1993 and the second one is that department was aware as early as 1994 that the tyres cleared by the appellant were being used in the motorcycles which are other than mopeds. Even after 1994 the department was approving the classification list filed by the appellant claiming concessional rate of duty. Under these circumstances suppression cannot be alleged. The demand fails on limitation as well. 13.The appeal is allowed the order of the Commissioner is set aside.
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2004 (5) TMI 183 - CESTAT, MUMBAI
Confiscation and penalty - Cenvat/Modvat ... ... ... ... ..... f Shaper in the reply to the notice to the adjudicator submitted as under 3.......The company has prepared the same chart by adding transport details against each entry in Annexure A to the Show Cause Notice to show the physical movement of the intermediate products from the 14 parties to the company... No findings on this chart are arrived at, which was required. The order is issued without considering the defence reply. It is to be set aside and remitted back to the adjudicator. He should rehear the appellants in all the three notices and redetermine the alleged eligibility to credit. Thereafter, penalty, if required under Rule 226 and/or Rule 210 of the Central Excise Rules for the credit entries made but not permissible be determined. 4. In view of the findings arrived, the appeals are allowed in above terms as regards penalty under Rules 209A and 173Q. The other appeals remitted for rehearing and de novo adjudication on all issues. 5. Appeals disposed off in above terms.
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2004 (5) TMI 182 - CESTAT, BANGALORE
Manufacture ... ... ... ... ..... he present case. Thus apparently no new product has come into existence. However in Para 24 of the impugned order, it is proposed that the finished product which is offered for sale falls under chapter Sub-Heading No. 7616.90. No discussion has been recorded in the Order-in-Original that how this product falls under Chapter S.H. 7616.90. Chapter S.H. 76.16 is for other articles of Aluminium like nails, tacks, staples, screws, bolts, nuts, etc. We do not find that the Aluminium strip can be classifiable under Chapter S.H. 7616. Therefore, we do not find the reason given that the process of manufacture has taken place and other articles of Aluminium have come into existence. Therefore we do not find that any new excisable product has come into existence which should be classified under Chapter S.H. 7616.90. Since no new excisable product has come into existence, therefore, there is no need of going into other issues. 11. In view of our above findings, these appeals are allowed.
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2004 (5) TMI 181 - CESTAT, BANGALORE
Valuation (Central Excise) - Packing charges ... ... ... ... ..... urn them to the factory of origin or its collecting agent on payment . This order does not throw any light if there was any agreement between the appellants and the buyers of the cement for return of bags. As per Cement Control Order, the appellants can purchase the goods from the person who has no relation with the goods. In the impugned order, the Commissioner (Appeals) has clearly mentioned that in their General Ledger page Nos. 116 to 119 and 121 relating to the period from 9/74 to 8/75, the entries made therein represent the purchase of second hand gunny bags but they could not establish that there was an agreement between them and the buyer of cement for return of gunny bags. No bag has been returned on such an agreement. No evidence regarding the refund of packing charges has been produced by the appellants. Therefore, the appeal has been correctly rejected by the Commissioner (Appeals). We therefore uphold the order of the Commissioner (Appeals) and reject the appeal.
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2004 (5) TMI 179 - CESTAT, CHENNAI
SSI Exemption - Option for availment of - Penalty - Imposition of ... ... ... ... ..... 1999. In the result, the demand of duty for the periods prior to the actual dates of exercise of option under the relevant notifications have to be sustained. We, therefore, affirm the demands. 8. The penalty imposed on M/s. Sisir Enterprises in Appeal No. 526, however, cannot be sustained inasmuch as no mala fide intention has been brought out in the order impugned in that appeal. It appears from the facts and circumstances of the case that the belated exercise of option by M/s. Sisir Enterprises was occasioned by a bona fide mistake. We do not see any reasonable ground for penalty on the party in such circumstances. It is also pertinent to note that M/s. Sisir Enterprises and M/s. Jalan Industrial Company have not been penalised despite the fact that they were similarly placed in the other 2 appeals. The penalty on M/s. Sisir Enterprises in Appeal No. 526 is vacated. 9. Appeal No. E/526/2003 is disposed of in the above terms and Appeal Nos. E/527 and 528/2003 are dismissed.
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2004 (5) TMI 174 - CESTAT, MUMBAI
Cenvat/Modvat - Inputs - Confiscation of goods - Non-accountal of goods - Penalty ... ... ... ... ..... ontainer in factories and not in shipment packaging. The confiscation arrived at is therefore to be set aside, as goods are not excisable, even if exigible, they are not liable to warrant a confiscation. (j) When confiscation liability is not upheld, the penal liability cannot be upheld. Since goods are not exigible, no liability could arise. If goods are exigible, the penal liability under Rule 210 being maximum Rs. 1000/- and rule 226 of Rs. 2,000/- the penalty of Rs. 40,000/- arrived at without showing the break up cannot be upheld. (k) Since goods are found to be non-exigible, no duty liability would arise. In fact when they are found in the BSR, therefore, even if exigible, duty liability would arise only on clearance i.e. removal ex BSR and not when they are in BSR as per Rules. Duty demand as made cannot be therefore sustained. 2. In view of the finding arrived, the order is required to be set aside. 3. Ordered accordingly. Consequently, appeal of the assessee allowed.
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2004 (5) TMI 172 - CESTAT, CHENNAI
Valuation (Customs) - Second-hand machinery ... ... ... ... ..... e value of second-hand machinery certified in the Chartered Engineer s Certificate produced by the importer was fair and reasonable and hence not liable to be discarded. The department s appeal against this decision was dismissed by the Supreme Court 2003 (158) E.L.T. A75 (S.C.) . The facts of the cited case are similar to those of the instant case and, therefore, the cited case law can be appropriately followed in the instant case. 5. In the result, we hold that the declaration, by the appellants, of year of manufacture as well as of the value of the imported second-hand machinery is liable to be accepted for all purposes. The declared value (transaction value) is liable to be accepted in terms of Section 14 of the Customs Act for assessment of the goods for duty of Customs. There being no misdeclaration on the part of the appellants, the order of confiscation and penalty cannot be sustained. Accordingly, the order of the Commissioner is set aside and this appeal is allowed.
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2004 (5) TMI 171 - CESTAT, NEW DELHI
Excisability - Scrap, gun metal scrap ... ... ... ... ..... 57-S(2)(c) and Rule 57AB(2)(b) referred to above, could not be invoked for demanding duty as the appellants had not sold the capital goods as such as waste and scrap. They had only sold gun metal scrap and no credit was also availed by them in respect thereof. Therefore, the impugned order holding the gun metal scrap to be excisable, cannot be sustained and the same is set aside. 6. However, excisability of conveyor belt scrap/rubber scrap has not been disputed before us as the same had arisen out of the capital goods on which Modvat credit was availed by the appellants. Therefore, the impugned order demanding duty in respect of this scrap is upheld. 7. Keeping in view the facts and circumstances detailed above and the issue involved, the imposition of penalty on the appellants is not warranted and the same is set aside. 8. In the light of the discussion made above, the impugned order accordingly stands modified. The appeal of the appellants is disposed of in the above terms.
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2004 (5) TMI 170 - CESTAT, CHENNAI
Penalty - Customs House Agent - Suspension of ... ... ... ... ..... he Tribunal, it has held that no penalty can be imposed under Section 114 when the clearing agent had no knowledge about the illegal acts of the exporter. In the instant case, the Commissioner s order has not held that the CHA had done anything or omitted to do anything in connivance with, or with the knowledge of illegal acts of, any exporter. Therefore, we set aside the penalty imposed on him under Section 114 of the Customs Act. We have already noted that Section 117 was illegally invoked against appellant. In the result, the penalising order of the Commissioner is set aside and Appeal No. C/13/2004 is allowed. The Appeal No. C/73/2004 is against the order passed by the Commissioner of Customs suspending the CHA licence under Regulation No. 20 of the CHA Licensing Regulations, 1984. Regulation No. 20 did not authorise suspension of CHA licence. The suspension of licence is unauthorised. Therefore, we set aside the order of the Commissioner of Customs and allow the appeal.
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2004 (5) TMI 166 - CESTAT, NEW DELHI
Demand - Clandestine manufacture and removal ... ... ... ... ..... the parties. In the cross-examination as well as in the affidavit such persons have explained what is meant by the term replacement in this trade. They have categorically stated that defective goods are taken to the factory of the appellant. After repair, sometimes even replacing some parts, CPTs are returned to the customers. This procedure is termed as replacement . When procedure under Rule 57F(4)/173H had been correctly followed and there is no other evidence of excess production and clandestine removal, we find that the order passed by the Commissioner on this issue cannot be sustained. 11.On the denial of Modvat on electron gun also we find that the assessee has produced sufficient material to show that the difference in numbers cannot be in excess of loss sustained in the manufacturing process. Since the demand of duty is not sustainable, naturally, the imposition of penalty also cannot be upheld. 12.In the result, we set aside the order impugned and allow the appeal.
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2004 (5) TMI 165 - CESTAT, BANGALORE
SSI Exemption - Brand name - Penalty ... ... ... ... ..... ore, from the records, it is very clear that the appellants have been filing all the returns and the company s mark had been shown on the letter heads which are different. The Inspectors have put their signatures and the seal on the letters and on all the returns. Therefore, it cannot be said that the appellants suppressed the facts in order to avail the benefit of notification. As noted, the name of the company is in the nature of house mark and not a trade mark and merely because of the fact that the Company has the name VOLTARC with different signs it cannot be said that they have used common brand name for the purpose of availing the benefit of notification. The judgements cited by the appellants also support their case on both the aspects of merit and limitation. The citations relied on by the assessee is fully applicable to the points of this case. The appellant succeeds and the impugned order is set aside. The Revenue s appeal is dismissed and party appeal is allowed.
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2004 (5) TMI 164 - CESTAT, NEW DELHI
Refund claim - Limitation ... ... ... ... ..... ratio of the decision of the Supreme Court in State of Rajasthan v. Hindustan Copper Ltd. In the above case Rectified Spirit was imported for use in the manufacture of copper. Price of copper is fixed by MMTC on the basis of the prevailing price fixed by the London Metal Exchange. Only such price could be charged from the consumers and no part of the excise duty paid on rectified spirit captively consumed in the manufacture of copper could be added to the price of copper which was fixed on the basis of LME prices. Supreme Court held that there is, therefore, no question of unjust unrichment. 11.Certificate issued by the Fertilizer Industry Co-ordination Committee would show that while fixing the price of fertilizer urea made from naphtha excise duty on naphtha is not taken into consideration. Under these circumstances, we hold that the appellant cannot be denied refund on the ground of unjust enrichment. 12.In the result, we set aside the order impugned and allow the appeal.
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2004 (5) TMI 163 - CESTAT, CHENNAI
Manufacture - Dutiability - Transformers - Exemption ... ... ... ... ..... used by research institutions working under the Atomic Energy Department, Government of India. The Revenue has no case that IGCAR is not a research institution under the AED or that the said institution did not use the transformers in question for research purposes. The transformers were actually cleared to IGCAR only on the basis of the requisite certificate issued by the Dy. Secretary to Government of India, AED, which certified that the transformers were to be used for research purposes by IGCAR, Kalpakkam. A transformer working on scientific, principles must squarely fall in the category of scientific equipments, apparatus, instruments, etc. The transformers in question, therefore, satisfied the conditions of the Notification. The benefit of exemption under the Notification was, therefore, clearly admissible to them. 8. We have found that both the demands of duly are unsustainable. No other issue survives. Therefore, we set aside the impugned order and allow this appeal.
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2004 (5) TMI 160 - CESTAT, BANGALORE
Defibrillator - Exemption ... ... ... ... ..... ised an issue on limitation about which no view is expressed by Member (Technical). Member (Judicial) even though felt that the appellant has a good case on the issue of limitation, did not go into it as he was inclined to allow the appeal on merits. Since the Members have not expressed any view on the issue of limitation, it is not proper for me to consider the question of limitation on merits, even though, it was contended on behalf of the appellant that the dispute relates to interpretation of a notification and when the issue is not very clear as there was difference of opinion between the two learned Members, it is a fit case to accept the contention of the assessee that there was no wilful mis-statement or suppression of facts or contravention of any of the provisions of the Act or the Rules with intent to evade payment of duty. It is for the regular Bench to consider the issue on merits. 10. Appeal will be placed before the Regular Bench for passing appropriate orders.
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2004 (5) TMI 158 - CESTAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... elp the Revenue s case since what was held by the Larger Bench in Nizam Sugar case was that any show cause notice issued beyond the period of six months from the date of acquiring knowledge will not be barred by limitation, if the duty has not been levied or not paid or short-paid or short-levied or erroneously paid by reason of fraud, collusion, or wilful misstatement or suppression of facts .... and the show cause notice has been issued within 5 years from the relevant date as defined under sub-section (3) of Section 11A of the Central Excise Act. This does not mean that the extended period of limitation remains invocable even if the facts have come to the knowledge of the Department. This was the view expressed by the Tribunal in the case of Rubicon Steels (supra) which has been confirmed by the Supreme Court also. We, therefore, find no reason to interfere with the impugned order passed by the Commissioner (Appeals). Accordingly, we reject the Appeal filed by the Revenue.
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2004 (5) TMI 155 - CESTAT, MUMBAI
Clandestine removal - Accountal of production - Proof ... ... ... ... ..... is located in the factory. If the evasion of this scale was going on, it is difficult to believe that the sector office could not have spotted the to and fro entry of several trucks carrying empty tin containers to be used for clandestine removal. There is no allegation that the officer had colluded with the appellants. 14.Therefore in the absence of any corroborative evidence showing clandestine removal, I hold that, the allegations are based only on suspicion and can not be sustained. The manner of stocking empty tin containers along with containers filled with V.P. does raise a suspicion about some mala fide intention of the appellants. But it is an established law that, suspicion, howsoever grave, can not be a substitute for an evidence. 15.In the light of the above discussions, I hold that the impugned order cannot be sustained and the same is accordingly set aside and the appeal of the appellants is allowed, with consequential relief, if any, in accordance with the law.
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2004 (5) TMI 153 - CESTAT, CHENNAI
Refund (Customs) ... ... ... ... ..... such goods was cleared, later on, under another Bill of Entry. However, this fact would not alter the aforesaid position of law. In Uniferro International Ltd. v. CC, Bombay (supra) also, there was a similar factual situation. In that case too, the foreign supplier had freely replenished the short-shipped goods. Yet the Tribunal held that the subsequent supply of short-shipped goods by the supplier would not render the importer eligible for refund of duty on the differential quantity of goods. In our considered view, where the shortage of goods is found for the first time in the importer s premises after the imported consignment has gone out of customs charge, it can hardly be a case of short-shipping. 5. We hold that the refund claim of the respondents was rightly rejected by the original authority and the order of the Collector (Appeals) setting aside the original authority s order is not sustainable. We, therefore, allow this appeal after setting aside the impugned order.
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2004 (5) TMI 152 - CESTAT, NEW DELHI
Re-adjudication ... ... ... ... ..... ies Ltd. v. Union of India - (1997) 5 SCC 536. The appeal is disposed of. No costs. In pursuance to the order passed by the Hon ble Supreme Court, the appellants filed the appeal and the refund is to be considered in view of the order passed by the Hon ble Supreme Court. The Hon ble Supreme Court specifically directed the excise authorities to consider the refund after taking into consideration the principles of unjust enrichment. Therefore, the present impugned order rejecting the claim on the ground of limitation is not sustainable and hence set aside. The matter is remanded to the Adjudicating Authority with the specific direction that refund is to be decided in view of the direction given by the Hon ble Supreme Court and the Adjudicating Authority will decide the refund application within a period of 3 months after receipt of this order and after affording an opportunity of hearing to the appellants. The appellants undertakes to cooperate with the Adjudicating authority.
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2004 (5) TMI 151 - CESTAT, NEW DELHI
Remission of duty ... ... ... ... ..... arh, 2002 (144) E.L.T. 577. 6. The contention of the Revenue is that the appellants have not followed the procedure as they have not informed the department within 24 hours of the loss. 7. The appellants are engaged in the manufacture of sugar and during the manufacture of sugar, they are getting molasses which were stored in the tanks and this is being received in tanks through pipes and the Mill is under the control of the State Excise Authority and no molasses can be removed from the factor without the permission of the State Excise Authority. Further the loss is less than 1 which is not disputed by the Revenue. In the decisions cited by the appellants, the Tribunal held that the molasses produced is a by-product in the sugar industries and the loss is to be calculated in terms of percentage and the loss of less than 2 is condonable. 8. In view of the Board s circulars and in view of the decisions of the Tribunal, the impugned order is set aside and the appeal is allowed.
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