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Case Laws
Showing 141 to 160 of 538 Records
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2000 (5) TMI 765 - CEGAT, KOLKATA
Demand - Limitation ... ... ... ... ..... e classification lists plate shearings were mentioned by name and claimed as waste and scrap classifiable under heading 7204.90. The proper officer having jurisdiction over the appellants factory had granted approval to such plate shearings. Such approval is deemed to have been granted by the proper officer after making necessary verification and after examining the product in question. Not only that the RT-12 return filed by the appellants were also duly assessed. It seems to be a case of mere change of opinion as regards the classification of the product, as rightly contended by the ld. Adv. Such modification in the classification list can only be prospective, as held by the Constitutional Bench of the Hon ble Supreme Court in the case of CCE, Baroda v. Cotspun Ltd. - 1999 (113) E.L.T. 353. As such by following the ratio of the said decision we set aside the demand as barred by limitation and allow the appeal on this limited ground without going into the merits of the case.
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2000 (5) TMI 764 - CEGAT, KOLKATA
Confiscation and redemption fine ... ... ... ... ..... re is no evidence on record that the Indian currency in question is a sale proceeds of the LDPE unauthorisedly removed by M/s. Bindal. Similarly the confiscation of the goods seized from their work premises was not justified. 4. emsp I have also heard Shri Kennedy, ld. JDR for the Revenue. 5. emsp I find force in the appellants rsquo submissions that the adjudicating authority was not justified in confiscating the Indian currency and the LDPE with redemption fine of Rs. 70,000/- after having recorded that the proceedings against the appellants are being dropped. Otherwise also I find that there is no evidence on record to show the Indian currency to be the sale proceeds of LDPE removed without payment of duty by M/s. Bindal. The onus to prove so lies heavily upon the department. Similarly, I find that the redemption fine of Rs. 70,000/- is also not justified. Accordingly, I set aside the impugned order and allow the appeals with consequential relief to the appellants, if any.
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2000 (5) TMI 763 - CEGAT, KOLKATA
Stay/Dispensation of pre-deposit - Penalty ... ... ... ... ..... an option to the appellant to redeem the same on payment of redemption fine in terms of Section 125 of the Customs Act, 1962. These have not been done by him and the goods worth Rs. 15 lakhs have been confiscated absolutely, penalty of Rs. 2,00,000/- imposed upon them, may be stayed. 3. emsp To the similar effect are the arguments of the other applicants duly represented by various advocates. 4. emsp After hearing Shri R.K. Roy, ld. JDR who submits that there is ample evidences in the shape of statements of various persons corroborating each other to justify the confiscation of the goods, we feel that the stay petitions can be disposed of on the short ground of the Commissioner not having given any option to the owner of the goods to redeem the same. Accordingly, we allow all the stay petitions unconditionally and fix the main appeals on 18th July, 2000 as the cinnamon belonging to the appellants have been confiscated absolutely and are lying in the custody of the Department.
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2000 (5) TMI 762 - CEGAT, MUMBAI
... ...
... ... ..... n in clause (5) of the notification. It is on this basis that the Commissioner has imposed penalty of Rs. 1,83,403/- on the appellant under Section 114A of the Act. 3. emsp Section 114A of the Act provides for imposition of penalty on a person who is liable to pay duty or interest in the circumstances specified in that section. It is not the case of the department that the appellant was liable to pay either duty or interest. The appellant did not import or export any goods which are the subject matter of proceedings before us. The Commissioner rsquo s order in fact shows no reason whatsoever as to why in these circumstances he considered fit for imposition of penalty under this section on the appellant. If at all penalty was imposable under this section it should have been imposed on the person liable to pay duty on the goods i.e., the importer of the goods. 4. emsp Accordingly we allow the appeal and set aside the order of the Commissioner imposing penalty on this appellant.
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2000 (5) TMI 761 - CEGAT, KOLKATA
Stay/Dispensation of pre-deposit ... ... ... ... ..... h as they are not buying unbranded chewing tobacco from out-side but are manufacturing the same inside the factory from the raw tobacco. As regards the appellants rsquo claim under the provisions of Rule 9 proviso 3, he leaves the matter to the discretion of the Bench. 4. emsp After hearing both sides, we agree with the submissions of the ld. advocate appearing for the applicants. The Commissioner has not given any reasoning for denying them the benefit of 3rd proviso to rule 9 condition which are fully satisfied by the appellants. As such, we find that the appellants have a strong prima facie case in their favour. Accordingly, we dispense with the condition of pre-deposit of entire amount of duty and penalty and debarred the revenue from recovery the same during the pendency of the appeal. Stay petition is thus allowed unconditionally. 5. emsp As the revenue involved is on the higher side, we take up the appeal itself on out-of-turn basis and fix the same on 14th July, 2000.
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2000 (5) TMI 758 - CEGAT, CHENNAI
Value of clearances - Clubbing of - Demand - Limitation ... ... ... ... ..... cannot be said that there is suppression in the matter calling for invocation of larger period. It is also significant to note that the Department had issued two separate Registration certificates under Central Excise Act and Rules to the two entities namely the appellant and M/s. FFPL even though the machinery was installed in that portion which was leased out to the appellants. Normally the Jurisdictional Superintendent is supposed to verify whether adequate machinery is available in the premises for the manufacture of the declared goods for which the Registration certificate is issued. In this case, the facts show that the Registration certificates for M/s. FFPL was issued despite knowing that in their premises there was no adequate machinery. Thus everything about the circumstances of operations of the two units were fully in the knowledge of the Department. 6. emsp In view of the aforesaid findings, we set aside the order impugned both on merits as well as on limitation.
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2000 (5) TMI 757 - CEGAT, KOLKATA
Iron - Steel plates ... ... ... ... ..... rsquo s Circular No. 13/Iron and Steel Products/65 dated 4-9-1965. He submits that all these facts could not be placed before the Tribunal at the time of passing of the earlier judgment referred (supra). 7. emsp We find that though the Tribunal has held that the benefit is not available in respect of splashed plate but we find that the facts which have been now placed before us by the ld. advocate for the respondents are relevant facts for re-consideration of the decision taken earlier. As the said facts are not placed before the authorities below which are highlighted now by the ld. Advocate, we consider it to be a fit case to remand the matter to the Assistant Commissioner on this limited issue. 8. emsp As a result, the Revenue rsquo s appeals as regards the first and second issues are rejected and the third issue is remanded to the Assistant Commissioner for de novo decision in the light of our observations made above. 9. emsp Both the appeals are disposed of accordingly.
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2000 (5) TMI 755 - CEGAT, NEW DELHI
Refund - Returned goods ... ... ... ... ..... goods, no material has been placed on the file. Similarly, the description of the goods re-despatched by them to the buyer after reprocessing and the date of dispatch did not tally with the entry in the invoice is the date mentioned in the invoice was 14-8-1993 while the goods are in fact dispatched by the appellants on 16-8-1993. They have not been able to explain this discrepancy. 5. emsp In the impugned order the Commissioner (Appeals) had given detailed reasons for disallowing the refund claim of the appellants while confirming the order-in-original. Keeping in view the facts and circumstances referred to above, we find no reason to differ with the view taken by the Commissioner (Appeals). The ratio of the law laid down in Perfect Industrial Corp. (supra) referred by the appellants is not applicable to their case in the light of the facts and circumstances detailed above. Consequently, there is no merit in the appeal of the appellants and same is ordered to be dismissed.
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2000 (5) TMI 754 - CEGAT, KOLKATA
Refund - Limitation ... ... ... ... ..... find sufficient force in the submission of the learned Advocate. We have seen the letter dated 28-10-1988 written to the Supdt. which clearly spells out that duty is paid under protest. It also became evident from the said letter that the appellants were paying lumpsum instalment of Rs. 10,000/- per month towards differential duty in terms of Supdt. rsquo s letter dated 5-8-1988. We have also been informed that no show cause notice has been issued to the appellants and no adjudication has taken place confirming the demand of duty. As such we agree with the learned Advocate that the amounts so deposited by them towards lsquo duties under protest rsquo are liable to be refunded to them. Accordingly, we set aside the impugned order and allow the appeal with consequential relief to the appellants in accordance with the amended provisions of Section 11B read with the Hon rsquo ble Supreme Court judgment in the case of Mafatlal Industries. Appeal is disposed of in the above terms.
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2000 (5) TMI 751 - CEGAT, KOLKATA
Refund - Unjust enrichment ... ... ... ... ..... Excise duty by their buyer. Accordingly, their refund claim of Rs. 23,280/- has been disallowed on the ground of unjust enrichment. In the grounds of appeal the appellants have contended that late issuance of the show cause notice by the Revenue was seriously prejudiced in their defence claim inasmuch as they are unable to produce record before the authorities. In ground No. (VI) they have submitted that unfortunately, their production of record of the receipt of payment of its bill from their customer was not possible because of destruction of the records by white ants. 3. emsp From the foregoing we find that appellants are admitting non-production of evidence on their part. Onus to prove that the duty burden has not been passed on to their customer is upon the assessee. As such without going into reasons for such non-production, we hold that the appellants do not have a case on merits inasmuch as they have failed to produce such evidence. Accordingly, we reject the appeal.
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2000 (5) TMI 750 - CEGAT, KOLKATA
Confiscation of goods ... ... ... ... ..... I find that the original adjudicating authority has observed that the appellant could not prove by satisfactory documents in respect of the said goods to be of Indian origin. It is the duty of the Revenue to prove that the betel nuts were of foreign origin and secondly they were imported illegally. The original adjudicating authority has gone by some circumstantial evidence which can at best only throw some doubt against the said goods but do not prove it beyond doubt that the same were of tainted character. Accordingly in the absence of any satisfactory evidences to prove that the betel nuts had been smuggled by the appellant I set aside the impugned order and allow the appeal.
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2000 (5) TMI 749 - CEGAT, CALCUTTA
Stay/Dispensation of pre-deposit ... ... ... ... ..... upon the various persons we find that the stay application of one of the noticee in the impugned order Shri Govindda Kr. Sarda, upon whom penalty of Rs. 10 lakhs was imposed was disposed of by this Bench vide Order No. S-440/Cal/99, dated 22-6-1999. It was observed that the Commissioner, while imposing penalties on the applicants has observed as follows - ldquo All of the noticees are involved in the case of M/s. Bowreah Cotton Mills. So all of them are liable to penal action under section 112(a) (b) of the Customs Act, 1962. rdquo It was observed that the finding is omnibus finding and no separate role of each noticee has been discussed and brought on record. By observing so the stay petition of Shri Govinda Kr. Sarda was allowed unconditionally. As such following the said stay order we allow the stay petitions of the applicants in so far as the penalties upon them are concerned. 8. emsp Matter to come up for ascertaining compliance by M/s. Bowreah Cotton Mills on 21-7-2000.
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2000 (5) TMI 745 - CEGAT, KOLKATA
Stay/Dispensation of pre-deposit - Penalty ... ... ... ... ..... h on the short ground that the goods involved including the trucks belonging to the transporters, have been confiscated absolutely by the Revenue and no option has been given to them for redeeming the same on payment of any fine so fixed by the adjudicating authority. As the goods belonging the main appellants, are in the custody of the Revenue having been confiscated absolutely, we allow the stay petitions of the transporter company and proprietor of the transporting company, father of the proprietor of the transporting company. In respect of other applicants, we find that they are employees of the transporting company, no specific role has been attributed to them. As such, the stay petitions filed by them, are also allowed un-conditionally. 6. emsp As a result, we allow all the stay petitions. 7. emsp As the goods including the trucks of the transporting company has been absolutely confiscated, we take up the appeals on out-of-turn basis and fix the same on 19th July, 2000.
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2000 (5) TMI 743 - CEGAT, KOLKATA
Appeal - Limitation - Condonation of delay ... ... ... ... ..... has been imposed. Shri K.P. Dey, ld. Advocate submits that originally a joint appeal was filed which was well in time. Subsequently, a separate appeal was filed by the Managing Director. Accordingly, he submits that the delay in filing the appeal should be condoned. 2. emsp After hearing both the sides, we condone the delay in filing the supplementary appeal.
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2000 (5) TMI 742 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit - Exemption ... ... ... ... ..... facility to manufacture such yarn and such units were denied the benefit of notification by proviso introduced by amending Notification 84/95. 4. emsp The applicant rsquo s application referring to this appeal does not address this issue but contends that duty is not payable on such yarn which is captively consumed. No authority for this proposition is put forth. In the absence of any exemption goods manufactured and cleared in a factory of production are deemed to be removed within the meaning of Rules 9 and 49 are liable to duty. No for such exemption has been cited. On merits therefore applicant has no prima facie case. 5. emsp However, the balance sheet for 1998-99 of the applicant shows that it has been declared a sick industry by the Board for Financial Reconstruction. Solely on this ground we waive deposit of the duty demanded and penalty imposed, but do not stay their recovery, leaving it to the department to pursue the recovery in accordance with law, if so advised.
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2000 (5) TMI 741 - CEGAT, MUMBAI
... ...
... ... ..... decision of the Tribunal reported 1996 (87) E.L.T. 522 in the case of M/s. Kanoria Sugar and General Mfg. Co. Ltd. v. CCE is relied upon. 4. emsp The learned counsel for the appellant has pointed out to a decision of this Tribunal reported in 1998 (102) E.L.T. 119 in the case of Commissioner of Central Excise v. Devidayal Aluminium Industries Pvt. Ltd. He said that in that decision after referring the above ruling it is held that lubricating oil used in the process of manufacture of brass strips and foils inasmuch as it keeps on continuously falling on the brass sheets when they are rolled through the rollers to prevent defects developing in sheets in the process of rolling and it is eligible for Modvat credit under Rule 57A of the Central Excise Rules. 5. emsp In view of the clear latest decision on the issue involved in this case, the appeal is admitted, allowed and the impugned order is set aside and the appellant is granted consequential relief, if any, according to law.
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2000 (5) TMI 740 - CEGAT, KOLKATA
Stay/Dispensation of pre-deposit - Modvat ... ... ... ... ..... llants have a good prima facie case in their favour in the absence of any allegations of the inputs not having received by them and the duty paid character of the inputs. The appellants have taken a specific stand in their reply to the show cause notice that the credit was availed on the basis of manufacturer rsquo s invoices and not on the basis of transporter rsquo s challans. We also find that the demand is prima facie barred by limitation inasmuch as the invoices were produced by the appellants for defacement by their jurisdictional Central Excise authorities, which defacement was carried out by them. As such, it cannot be said that there was any suppression on the part of the appellants/applicants so as to enable the Revenue to invoke the extended period of limitation. Accordingly, taking into account the over-all facts and circumstances of the case, we dispense with the condition of pre-deposit of duty and penalty and stay the recovery during the pendency of the appeal.
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2000 (5) TMI 739 - CEGAT, MUMBAI
Classifiaction ... ... ... ... ..... o accept the Commissioner (Appeals) rsquo s reasoning for its classification under sub-heading 90 of the rules that rolls are not part of rolling mills. This is obvious error in contrary to the words of the heading itself, which comprise of rolls for metal rolling mills. The departmental representative is therefore correct to that extent. However, the fact that the rolls are parts of rolling mills will not make any difference to that classification decided by us. 5. emsp The position that has resulted is obviously because of imperfect draughtsmanship. The HSN Explanatory notes from which the main heading has been derived have separate sub-headings for rolls and for other parts. 6. emsp If the department rsquo s appeals were to be accepted, it would have the effect of excluding from the main heading rolls for rolling mills limiting to the rolling mills alone. That method of interpretation is impermissible. 7. emsp We therefore see no reason to interfere and dismiss the appeal.
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2000 (5) TMI 738 - CEGAT, KOLKATA
Modvat - Difference in duty ... ... ... ... ..... Shri J.M. Kenedy, ld. JDR for the Revenue. Nobody is present on behalf of the respondents. 4. emsp I find that the respondents had taken the credit of the duty shown in the invoice issued by the depots under the provision of Rule 57GG. There is nothing on record to show that the dealer or the depot has also been issued any notice or any action has been taken against them for wrong calculation of the duty amount on their invoices than what has actually been paid by M/s. IOC. The Revenue in their appeal has not contended that the practice adopted by the oil companies, as commented upon by the Commissioner (Appeals), is not in force. As such I find that the Commissioner (Appeals) has rightly remanded the matter to the Asstt. Commissioner for finding out the correct position and the reasons for the difference in duty paid by the manufacturer and the duty as shown in the depots rsquo invoices. Accordingly, I do not find any merits in the Revenue rsquo s appeal and reject the same.
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2000 (5) TMI 736 - CEGAT, KOLKATA
Valuation - Discount ... ... ... ... ..... clearly spelt out in their trade circulars as regards the quantity incentive and that the same is available uniformly to all buyers as a normal trade practice. He submits that uniformity is no criteria for allowing deduction of the discount. Referring to number of decisions he submits that for the discount to be an admissible deduction does not have to be uniform. 3. emsp We have also heard the ld. JDR. 3. emsp From the impugned orders we find that there are no allegations in respect of special trade discount as well as the quantity discounts to the effect that the same are in any way influencing the prices and have actually not been passed to the customers. These discounts are based on commercial considerations and the fact of transactions at an arm rsquo s length have not been doubted by the department. As such following the ratio of the decisions relied upon by the appellants, we set aside the impugned order and allow the appeal with consequential relief to the appellants.
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