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Case Laws
Showing 121 to 140 of 474 Records
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2000 (10) TMI 665 - COMMISSIONER OF C. EX. & CUS., (APPEALS) PUNE
Return of damaged goods to factory ... ... ... ... ..... at the appellants are not liable to pay duty on granite slabs which were never cleared for home consumption. In the meantime the character of the goods has changed, because of the accident, from lsquo granite slabs rsquo to lsquo granite scrap rsquo . As and when the subject granite scrap is cleared from the factory for home consumption, appropriate duty on the goods would be paid by the assessee as per law. 7. emsp In view of the foregoing facts, I do not find any ground to impose penalty on the appellants who have acted as per law. In so far as the insurance claim is concerned, it is not for me to see whether the insurance claim amount contained the element of Central Excise Duty amount also. It is expected that having not paid the central excise duty the appellants would bring this matter to the notice of the Insurance Authority appropriately. 8. emsp In view of the foregoing, while setting aside the impugned Order-in-Original, I allow the appeal with consequential relief.
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2000 (10) TMI 664 - CEGAT, CHENNAI
Appeal - Limitation ... ... ... ... ..... within 3 months from the date of receipt of the order and that the Commissioner (Appeals) has power to condone the delay for another period of three months if sufficient cause is shown. The period of condoning the delay is already fixed in the statute itself and therefore, the Commissioner (Appeals) does not have power to enlarge the period beyond the period fixed in the statute itself. This point has been examined by the Larger Bench of the Tribunal and also by the Apex Court and it has been well laid down that where a legislature laid down a statutory period in the statue itself, then the authorities do not have power to extend the said period. This has been taken note of in the case of Tamil Nadu Tobacco Co. Ltd. (supra). In that view of the matter, the primary objection raised by ld. SDR is upheld and the stay application along with appeal is dismissed as not maintainable by holding that the Commissioner (Appeals) was justified in dismissing the appeal as barred by time.
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2000 (10) TMI 663 - CEGAT, CHENNAI
Modvat - Penalty ... ... ... ... ..... egularly large amount of duty through their PLA, RG23A and other Modvat account. They are regular importers of goods and are routinely taking Modvat credit of the duty paid under BE. Therefore, in support of their plea of clerical mistake in the light of the material evidence that the clerk who had committed the so called error was new to the job and also the management had failed to apprise and instruct the clerk in the required manner evidence is necessary, no such material evidence has been placed before us. We are therefore, of the view that penalty could be imposed in this case. However, the quantum of the same should be reduced to Rs. 25,000/- under Rule 173Q1(bb) which would serve the requirement of the rules for infraction of the same as brought out in this case. 6. emsp We, therefore, reduce the penalty to Rs. 25,000/- (Rupees Twenty-Five Thousand). The appeal is thus partially allowed as modified herein. Any penalty in excess of Rs. 25,000/- paid should be refunded.
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2000 (10) TMI 662 - CEGAT, KOLKATA
Smuggling - Confiscation and redemption fine ... ... ... ... ..... Customs Law is not tenable and deserves to be set aside. Ordered accordingly. We order release of the said foreign currency to the appellant. 8. emsp As regards the Indian Currency of Rs. 28,500/-, the ld. Advocate has rightly contended that Section 13(1) of the Foreign Exchange Regulation Act, 1973 has not been invoked in the show-cause notice. As no specific charge has been made in the show-cause notice in respect of the said Indian Currency, its confiscation is also not tenable. Hence, while setting aside its confiscation, we order release of the same to the appellant. 9. emsp The appellant admitted that on earlier occasions he brought gold to Madras and paid Customs duty. This shows that he is well aware of the Indian Customs law regarding importation of gold. As has been held by us that the appellant misused the ldquo Green Channel rdquo facility, imposition of penalty of Rs. 2,00,000/- is quite justified. 10. emsp The order impugned is thus modified in the above items.
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2000 (10) TMI 661 - CEGAT, MUMBAI
Appeal relating to recovery of drawback erroneously paid - Jurisdiction ... ... ... ... ..... d in clauses (a), (b), (c) of the proviso mentioned above may not be in the nature of the administrative orders but yet when the Parliament has chosen to exclude the Jurisdiction of the Tribunal in a mandatory way by means of the words ldquo The Appellate Tribunal shall not have Jurisdiction to decide rdquo it means that Tribunal cannot hear such matters. If the Tribunal which is a creature of the statute and has to decide the matter authorised to hear the same I cannot do so in respect of matters not authorised to hear the same. It is no doubt true that the revisionary authority in this case rejected the petition filed before it. These are of the difficulties which the assessee is facing namely revisionary authority has rejected it and the Appellate Tribunal does not have Jurisdiction what steps can the assessee do. We can only observe that they have to seek remedy before a proper forum. What is the proper forum we are enable to give any advice. I agree with the ld. Brother.
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2000 (10) TMI 660 - CEGAT, KOLKATA
Modvat - Duty paying documents ... ... ... ... ..... al and carbon copy is meant for transportation being duplicate. Merely because the expression original, triplicate and quadruplicate have not been scored out from the invoice, it does not make the invoice less than duplicate copy, the same is rectifiable defect and disallowance of the Modvat credit on the said ground is not justifiable. 2. emsp After hearing both sides I fully agree with the submission made by the learned Consultant. Merely because the other expression apart from duplicate one has not been crossed by the appellants, the second copy produced by the appellants will not become an ineligible document for the purpose of taking Modvat credit in the absence of any other allegation of duty paid character of the Inputs, their receipts in the appellants rsquo factory and their utilisation in the manufacture of final product. Accordingly, I set aside the impugned order and allow the appeal with consequential relief to the appellants. Stay petition also gets disposed of.
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2000 (10) TMI 659 - CEGAT, NEW DELHI
Dutiability - Marketability - Captive consumption ... ... ... ... ..... ed the submissions of both the sides. It is settled law that a commodity which is sought to be made liable to excise duty must be a commodity that is marketable. The ld DR has rightly pointed out that the decision in Lohia Sheet Products was given by the Tribunal for want of evidence about the marketability of the untrimmed copper sheets. The Revenue has shown from the facts in the case of Agrawal Rolling Mills that the untrimmed sheets/circles of copper were being sold and as such are capable of being brought to the market for being bought and sold. Similar views have been expressed by the Tribunal in the case of Everest Metals v. CCE Delhi, 2001 (130) E.L.T. 122 (T) 2000 (40) RLT 273 (CEGAT) wherein it was held that mere fact that the entire production is captively consumed does not mean that the product is non marketable. Accordingly we set aside the impugned Order and allow the appeal filed by the Revenue. The cross objections filed by the Respondents are, thus, rejected.
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2000 (10) TMI 623 - CEGAT, MUMBAI
... ...
... ... ..... e. Any sale at price higher or lower than that fixed would be a sale in contravention of the law. The Supreme Court has said that in that situation, the legal fiction has been created as a result of which the price fixed shall be deemed to be the assessable value (Aluminium Industries v. C.C.E. - 1998 (99) E.L.T. 486. This reasoning however will not apply to a situation where the maximum price is fixed. In that situation, the assessee cannot be accused of not acting in accordance with the law by selling the goods at the price below the maximum. It then could not be said that this maximum price should be considered to be the deemed price. The object of this fixing the maximum price under any law is evidently to ensure that the ultimate consumer does not have to bear a burden higher than that prescribed. This object would be served, and in fact better served, if the goods are sold below this maximum fixed price. 6. emsp We therefore see no reason to interfere. Appeal dismissed.
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2000 (10) TMI 622 - CEGAT, KOLKATA
Stay/Dispensation of pre-deposit - Stay order ... ... ... ... ..... the applicants to pre-deposit a sum of Rs. 50 lakhs. It is observed that in the Miscellaneous Application the applicants neither disclosed any new facts nor cited any development in the case law favourable to them. For this reason I am unable to subscribe to the view of ld. Vice-President. Hence, I do not find any justification for modification of the aforementioned Stay Order. Accordingly, I endorse the view of ld. Member (Judicial) that the Miscellaneous Application merits rejection. 19. emsp Registry shall initiate appropriate action in the matter at the earliest. Sd/- (DR. S.N. Busi) Member (Technical) FINAL ORDER 20. emsp In view of the majority order, the Application for modification of Stay Order is rejected. The applicants are directed to deposit a sum of the Rs. 50.00 lakhs (Rupees fifty lakhs) only on or before 15-12-2000 and report compliance on the said date. Sd/- S.N. Busi Member (Technical) Dated 31-10-2000 Sd/- Archana Wadhwa Member (Judicial) Dated 31-10-2000
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2000 (10) TMI 621 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit - Confiscated goods ... ... ... ... ..... e the unit. But there is no evidence to show whether the unit was actually revived. Ld. JDR argued that the company ceased to be a sick unit upon sanction by the BIFR for its revival. This argument was, however, not substantiated before us. Therefore, we cannot but treat the company as a sick unit. It is also not in dispute that the unit has suffered accumulated loss to the tune of over Rs. 7 crores as on 31-3-2000 as evidenced by the Balance Sheet produced by the applicants. Having regard to this precarious financial position of the applicants coupled with the fact that they are a sick unit as declared by the BIFR, we are of the view that the amounts of penalties imposed by the adjudicating authority should also not be required to be pre-deposited at this stage. The interests of the Revenue, however, would call for an early disposal of the appeal. 7. emsp The application stands allowed unconditionally and the appeal is directed to be posted for regular hearing to 14-12-2000.
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2000 (10) TMI 620 - CEGAT, NEW DELHI
Customs House Agents licence - Revocation of ... ... ... ... ..... Agent to ensure that value which is an important aspect in the export of goods is correctly indicated. In the instant case we find that Customs House Agent did not care to note whether documentary evidence from the exporter was available or not and thus he directly had supported claim of higher amount of drawback and other benefits etc. We find that in the case cited and relied upon by the appellants, the role of the Customs House Agent was not of direct application but was that of an ignorent person whereas the role in the instant case of the Customs House Agent is a direct one. Thus, the two are distinguishable. Moreover, in the two cases cited by the appellants, it is the principle of equity which has been followed and is not a legal precedent binding on us. Thus, we find that Ld. Commissioner has correctly analysed the evidence. We do not see any necessity to interfere with the impugned order. In the circumstances, the impugned order is upheld and the appeal is rejected.
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2000 (10) TMI 619 - CEGAT, MUMBAI
... ...
... ... ..... paid duty. It is only after the investigation officers came into the picture the duty was paid. In these circumstances there was a case for liability to confiscation of the goods under clause (m) of section 111 of the Act. The importer would also be liable to penalty. Liability of each of the individuals to penalty would also have to be examined having regard to their involvement in the proceedings. We are of the view that it is more appropriate for the Commissioner to examine this aspect and decide it in accordance with law after taking into consideration such factors as margin of profit, for which he may hear the appellant also. 11. emsp In the result Commissioner rsquo s order confirming the valuation of the goods is confirmed and the appeal (C/307-V/96-Bom.) filed by the importer is dismissed. The other three appeals (C/338 to 340/97-Bom.) filed by the department are allowed and the Commissioner rsquo s order not confiscating the goods and not imposing penalty set aside.
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2000 (10) TMI 617 - CEGAT, CHENNAI
Valuation - Remand - Freight and insurance charges ... ... ... ... ..... also referred to a number of other decisions of Tribunal as well as the Supreme Court decision in the case of Baroda Electric Meters Ltd. v. C.C.E. as reported in 1997 (94) E.L.T. 13 (S.C.). 6. emsp As the facts have not been fully analysed by the appellate authority and he has confirmed the view taken by the Assistant Commissioner of Central Excise without discussing the legal position, we consider that this matter has to go back to the jurisdictional Assistant Commissioner of Central Excise, who should re-examine the matter in the light of the latest case law on the subject and then after affording an opportunity of hearing to the assessee, pass a speaking order as per law. 7. emsp Learned Counsel prays that the matter is very old and the adjudicating authority should dispose of the matter at the earliest. 8. emsp We direct the Assistant Commissioner of Central Excise to take up this matter on priority basis. With these observations, the appeal is allowed by way of remand.
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2000 (10) TMI 616 - CEGAT, NEW DELHI
Rectification of mistake ... ... ... ... ..... ion that the Appellants are liable to pay the duty. An application under Section 35C(2) cannot be filed on the ground that a decision in a particular case has been wrongly interpreted by the Tribunal. An application for rectification of mistake lies only for patent mistake i.e. in a case where the mistake stares one in the face and there could be reasonably be no two opinions entertained about it. The Larger Bench of the Tribunal in the case of Dinker Khindria v. CCE, New Delhi, 2000 (118) E.L.T. 77 (T-LB) 2000 (38) RLT 442, has held that ldquo a decision on a debatable point of law or facts is not a mistake apparent from the record and the debatable issue could not be the subject of an order of rectification. Rectification of mistake does not envisage the rectification of an alleged error of judgment. rdquo Accordingly, we do not find that there is an error apparent on record of the Final Order No. 831-832/99-C, dated 9-9-1999 and accordingly we reject both the applications.
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2000 (10) TMI 614 - CEGAT, NEW DELHI
Modvat - Modvat - Reference to Larger Bench - Conflicting decisions ... ... ... ... ..... which would be different from the antibiotic itself. In the light of this observation, the Tribunal held that the appellants are entitled to take credit on these inputs. The ld. Counsel for the appellants would like me to refer the matter under consideration to the Larger Bench of the CEGAT as in his view there is difference of opinion between the two Benches of the Tribunal. This submission cannot be countenanced for more then one reasons. First of all there is a specific order of the Tribunal in respect of the very same appellant settling the very same issue against them. Secondly, this decision is by a two Members Bench whereas the decision in the case of Ethico Drugs and Chemicals is given by a single ld. Member. It is well settled legal proposition that the former would take precedence over the latter. In the last, the latter decision is rendered per incuriam of the former and on that account also it would not have any binding precedence. 4. emsp The appeal is dismissed.
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2000 (10) TMI 612 - CEGAT, MUMBAI
Modvat on capital goods - Judicial discipline ... ... ... ... ..... be seen from the words in tenor of the said stay order. As long as the existence of the Larger Bench decision of the Tribunal which is a superior body over the Commissioner (Appeals) he could not have disregarded the same thereby impinging the judicial proprietary hierarchical authorities provided under the Central Excise Act. In the judgment in the case of Kamalakski Finance - 1991 (55) E.L.T. 433 the Supreme Court has emphasized the need for the lower authorities to follow the orders passed by the superior authority. As long as the said law has not been upset by the Supreme Court the later case Kamalakshi Finance still holds the field. We are mentioning this only to show that the Commissioner (Appeals) should not have disposed of the appeal in this fashion but waited till the decision of the Supreme Court in the appeals pending before it. With these observations the appeals are allowed setting aside the impugned orders. In view thereof stay petitions also stand disposed of.
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2000 (10) TMI 611 - CEGAT, MUMBAI
Penalty - Confiscation of ship - Appeal - Authorisation of ... ... ... ... ..... senting the crew members which appears to be erroneous and the further fact that the Commissioner (Appeals) entertained this appeal which is erroneous again, cannot restrain us from the correct application of the law. It is not possible for us to agree that the letter of the crew members to the Addl. Collector of Customs authorizing the agency to represent them before him consists of a valid power of attorney to enable it to appear before this Tribunal on their behalf. That authority if it was valid, which we seriously doubt, ceased to have force the moment for which particular occasion it was given, the personal hearing before the Addl. Collector took place. We do not see the relevance of Order 1 Rule 1 of the Code of Civil Procedure to proceedings before this Tribunal particularly when not even one of the 26 persons has filed a valid appeal before us. This appeal therefore is dismissed as not maintainable. 10. emsp Appeal C/131 and 176/96 allowed. Appeal C/171/96 dismissed.
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2000 (10) TMI 606 - CEGAT, CHENNAI
Reference to High Court - Modvat ... ... ... ... ..... ibunal, the appellants had also filed a Reference application before the Tribunal seeking reference of the questions raised by them to the Hon rsquo ble High Court for consideration. It was not accepted by the Tribunal by Reference Order No. 213/96 dated 22-10-96. Aggrieved by the said order, they have filed a RC No. 1997 before the High Court of Judicature at Madras. The High Court has drawn up the above two questions with a direction that the statement of the case be drawn by the Tribunal and the matter referred with Paper Books to them to answer the questions in terms of Section 35G of the Central Excise Act. 4. emsp In that view of the matter, the Tribunal has drawn the above statement for reference to the Hon rsquo ble High Court in answering the same in terms of the said Section. Therefore, the Registry shall send the Paper Books and the statement drawn to the Hon rsquo ble High Court for answering the question drawn by the Hon rsquo ble High Court. Ordered accordingly.
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2000 (10) TMI 605 - CEGAT, NEW DELHI
Modvat - Input - Reference application - Limitation ... ... ... ... ..... ry and hence Modvat credit should not have been extended to these items. He therefore, prays that the question of law as framed by the Revenue, may be referred to the Hon rsquo ble Allahabad High Court for decision. 4. emsp The prayer is opposed by the learned Counsel Shri Bipin Garg who draws my attention to the fact that the decision of the Larger Bench of the Tribunal in the case of Union Carbide India Ltd. v. C.C.E., Calcutta - 1996 (86) E.L.T. 613 in which Modvat credit has been held to be admissible on various items akin to the items in dispute in the present case, has been upheld by the Hon rsquo ble Patna High Court in the case of TELCO - 1999 (111) E.L.T. 9 (Pat.) 1999 (31) RLT 800. 5. emsp Since the Division Bench of the Patna High Court has upheld the Tribunal rsquo s order in the case of Union Carbide, the law on this issue stands settled. Hence no question requiring reference arises from the Tribunal s final order. Accordingly, I reject the Reference application.
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2000 (10) TMI 603 - CEGAT, CHENNAI
Seizure - Reasonable belief - Valuation ... ... ... ... ..... ultant submitted that valuation of the goods under seizure has not been properly done. We find that the mahazar values are much higher than the market value as indicated in the baggage receipts and therefore as regards the watches, we accept his plea that the watches under seizure need to be re-valued. 5. emsp In view of our findings, we set aside the order of confiscation and penalty on the goods and order that all the goods need to be returned to the appellant except 45 pieces of watches which are under seizure. We direct the lower authority to re-value the watches as per law and after giving due notice to the appellant and thereafter the matter may be decided in de novo proceedings. The penalty and redemption fine should depend on the revalue determined. In the result, confiscation of all the goods except 45 watches is set aside and as far as watches are concerned, the value should be re-determined and readjudicated. The appeal is thus partially allowed in the above terms.
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