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Case Laws
Showing 121 to 140 of 445 Records
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2001 (12) TMI 746 - CEGAT, CHENNAI
Refund - Duty on raw materials used captively by importer - Tribunal’s order ... ... ... ... ..... licable to a claim for refund of duty paid on imported goods used captively by the importer. We, however, find that, though the assessee can no longer claim support from the Bombay High Court rsquo s decision, their specific case on the question of admissibility of the Chartered Accountant rsquo s Certificate as also their reliance on any case law on the point require to be considered at the lower appellate level. Accordingly, we set aside the impugned order and allow this appeal by way of remand, directing the Commissioner (Appeals) to consider and decide on the question whether the Chartered Accountant rsquo s Certificate under reference was sufficient evidence in support of the assessee rsquo s claim that the incidence of duty had not been passed on to their customer, and to dispose of the matter by a speaking order. It is made clear that a reasonable opportunity of being heard will be given to the assessee by the Commissioner (Appeals) before final disposal of the matter.
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2001 (12) TMI 745 - CEGAT, CHENNAI
Modvat/Cenvat - Modvat on capital goods ... ... ... ... ..... fore, eligible for Modvat credit is correct, but that the reliance placed by it on Rule 57-S of the Rules was not correct. rdquo 2. emsp As can be seen from para 6 of the extracted order the question referred is answered by Hon rsquo ble High Court by holding that the findings of the Tribunal that the diesel engine is part of the generating set itself and therefore eligible for Modvat credit is correct but that the reliance placed by it on Rule 57S of the Rules has been held to be not correct. The consequence of this order is that the order passed by Commissioner (Appeals) in Order-in-Appeal No. 118/96, dated 19-6-96 granting the assessee the benefit of Modvat credit in respect of diesel oil engine used in relation to manufacture of final product and holding them to be entitled to credit in terms of 57Q of C.E. Rules by allowing assessee rsquo s appeal with consequential benefit is required to be upheld. Thus, the final order is passed in terms of Section 35K of the C.E. Act.
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2001 (12) TMI 744 - CEGAT, MUMBAI
Penalty on owner and agent of Master of Aircraft ... ... ... ... ..... instance in future and the assurance has been accepted and also when I find that no material has been arrived at, to indicate the complicity of the liability of confiscation under Sec. 111(d), (e) and (i) and Mercy is being granted. Then I find no reason to withhold and withdraw abruptly, this benediction of mercy, to expose the Foreign Airline Carrier to a harsh penalty of Rs. 2 Lacs, when minimum liability prescribed is Rs. One Thousand only. Mercy cannot be dispensed in proportions. Mercy cannot be tampered. In this case when penalty is found to be liable, Mercy can be a reason for not increasing it over the minimum prescribed. 4. emsp In view of my findings I would set aside the penalty of Rs. 2 Lacs and impose the same at Rs. One Thousand only and partially allow the appeal, since this was the first instance where in the appellant were involved for non declaration of a confiscation manifest of goods imported by the Airline Co. 5. emsp Appeal disposed off in above terms.
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2001 (12) TMI 743 - CEGAT, KOLKATA
Demand - Shortage in quantity ... ... ... ... ..... as diverted to Port Blair on account of shortage of HSD in that region. In view of the facts and circumstances of the case, we are of the view that no Customs duty is demandable from the appellants only on the ground that the place of destination was changed, particularly when it is not in dispute that Port Blair is also declared as bonded warehouse station. We also observe that when the oil was received at Port Blair, there was some shortages in the quantity to the extent of 33.97 MT. This loss has not been separately considered by the adjudicating authority. We, therefore, set aside the impugned order holding that no duty is demandable on the quantity of oil which had been received at Port Blair. As far as quantity short received at Port Blair is concerned, the matter is remanded to the jurisdictional adjudicating authority to decide the matter in accordance with the provisions of law. Both the appeals are disposed of in the above terms. Stay petitions also get disposed of.
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2001 (12) TMI 742 - CEGAT, NEW DELHI
Confiscation and Penalty - Valuation ... ... ... ... ..... nal action was not warranted in the present case. With regard to the valuation of the goods, even though the foreign supplier has stated that there is no difference in value between the two consignments, since it is seen that the appellants themselves had imported two consignments of the same goods earlier in April and November lsquo 98, it would be justified to revalue the goods on the basis of the previous import. Since the earlier import at US 1.95 per Mtr. and the present import are both of films in jumbo roll it would be more appropriate to take that value rather than the higher value of US 2.30 per metre for the cut to size films. We, therefore, order that the assessment of the imported goods be finalized and duty charged adopting the assessable value of US 1.95 per Mtr. The differential amount if any, realized from the appellant towards duty or penalty may be returned to the appellant. Thus, the appeal is partially allowed by setting aside the confiscation and penalty.
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2001 (12) TMI 738 - CEGAT, NEW DELHI
Modvat/Cenvat - Modvat on inputs ... ... ... ... ..... se only after the credit of duty paid on the inputs was allowed. In the instant case, the credit taking on the inputs used in the manufacture of caustic soda lye was not permitted by Rule 57C as caustic soda was exempt from duty under the Notification. Hence, going by the Larger Bench decision, one could reasonably say that the question of utilization of the credit on any final product at later stage did not arise. In other words, the decision in NALCO is not compatible with the above view taken by the Larger Bench in Kirloskar. If the Kirloskar view were to be followed, the appellants would not be entitled to utilize the credit for payment of duty on viscose staple fibre cleared by their second unit. The correctness of the view taken by the 2-Member Bench in NALCO without due regard to the Larger Bench decision is not free from doubt. The matter, therefore, requires to be examined by a Larger Bench. Registry is directed to place the papers before the Hon rsquo ble President.
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2001 (12) TMI 737 - CEGAT, BANGALORE
Modvat/Cenvat - Modvat on capital goods - Dumpers ... ... ... ... ..... under Rule 57A or denial of Modvat credit on the ground item was not used within the precincts of the factory. There is a force in the arguments advanced on behalf of the party that at no stage it was charged that item in question was not used in the factory while denying the Modvat credit. As can be seen from the show cause notice, and the orders passed by the authorities below, it was proposed to deny the Modvat credit on goods mentioned at Annexure-I and II on the ground that the goods are not used in relation to the manufacture of the final product. It was also pointed out by the Counsel that in the instant case lsquo mine rsquo is also covered under the lsquo factory rsquo as per the certificate granted by the Department. 6. emsp In the facts and circumstances, since the item was used in relation to the manufacture of the final product, I do not find any justification to disallow Modvat credit on dumpers. In the view I have taken, appeal is allowed. Ordered accordingly.
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2001 (12) TMI 736 - CEGAT, BANGALORE
Modvat/Cenvat - Modvat on capital goods ... ... ... ... ..... considered in the light of the above. Wires and cables would be covered by the expression plant being an item necessary for the assessee to carry on his business and being an item not in the nature of a consumable, but an item having fairly high degree of durability. It therefore, satisfies the definition of plant. 40. Similarly, the other items involved in these cases namely control panels, cables, welding electrodes, etc., will also qualify as capital goods under Rule 57Q and would be eligible for Modvat credit and we order accordingly. rdquo 7. emsp Since the view taken by the Tribunal was upheld by the Supreme Court as reported in 2001 (132) E.L.T. 3, following the aforesaid decision, I do not find any reason to take a different view and accordingly, I hold that welding electrodes and arc welding generator are eligible capital goods in terms of Rule 57Q of the Central Excise Rules. Appellants succeed on this issue also. Thus this appeal is disposed of in the above terms.
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2001 (12) TMI 733 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit - Penalty - Jurisdiction - Stay/Dispensation of pre-deposit - Penalty
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2001 (12) TMI 731 - CEGAT, MUMBAI
Export obligation - Reversal of Modvat credit - Proof of ... ... ... ... ..... of AR4A refers to shipping bill. It is also our understanding that normally the shipping bill would mention the AR 4 document. AR 4 document becomes necessary either because the goods are being exported without payment of duty or rebate is to be claimed on the goods which are exported. For either of these purposes, it will have to be shown to the excise authority that the goods have in fact been exported. The document under which export is made is shipping bill. Correlation between the shipping bill and the AR4 document would normally be present irrespective of whether the Modvat issue was involved or not. In these circumstances, we think that the Commissioner should look at the position with an open mind. 4. emsp We accordingly allow the appeal and set aside the impugned order. The Commissioner shall consider the submission that the Counsel for the appellant undertakes to make within a month from the receipt of this order and pass orders on the notice in accordance with law.
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2001 (12) TMI 730 - CEGAT, NEW DELHI
Manufacture - Dutiability ... ... ... ... ..... Pradesh v. Sri Durga Hardware Stores reported in 1973 (32) STC 322 also does not apply to the facts of the present matter. We also hold that waste and scrap are chargeable to excise duty. We also observe that the Commissioner had given his finding in the impugned order that the appellant had not made any averment regarding waste and scrap and non-alloy steel, zinc dross, zinc ash and zinc slit before him. Merely because, the waste and scrap had arisen out of duty paid material, it does not mean that no duty will be payable on the same. We, therefore, hold that duty is chargeable on waste and scrap also. We remand the matter to the adjudicating authority to redetermine the amount of duty. As the amount of duty is to be redetermined, the penalty imposed under the impugned order is set aside. However, the Commissioner is at liberty to reconsider the imposition of penalty after redetermining the quantum of duty against the appellants. The appeal is disposed of in the above terms.
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2001 (12) TMI 729 - CEGAT, MUMBAI
EXIM Policy - Import licence - Capital goods ... ... ... ... ..... single plant under the project. To claim the benefit of being an accessory, the importer has to satisfy as to accessory of which principal the subject imports are they have failed to do so. rdquo 2. emsp Counsel for the appellant says that he is now in a position to demonstrate before the Commissioner that the goods were in fact part and parcel of the single plant of which the goods in question were accessories and requests that the matter may be remanded for examination of the aspect. He undertakes to produce evidence to this effect before the Commissioner within two months from the receipt of this order. The Departmental Representative has no objection to the matter being remanded. 3. emsp The appeal is allowed and the impugned order set aside. The Commissioner, shall after considering the materials that the appellant may produce within the time specified in the preceding paragraph, as also the material that the department may rely upon, pass orders in accordance with law.
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2001 (12) TMI 728 - CEGAT, MUMBAI
Classification of goods ... ... ... ... ..... erated cellulose and the latter being a cellulose compound, cellulose acetate. rdquo The Dictionary explains that the viscose process is one of the methods of producing rayon. 5. emsp The classification of fibres and fabrics in the Customs and Central Excise Tariff should not, in my view, be applied in the context of Chapter IVA of the Customs Act, 1962. The provisions of the chapter were introduced for preventing large scale of smuggling of various goods which the country has faced at the relevant time. Among these is yarn other than that obtained from natural textile raw materials. It would be simplistic in that situation to apply the strict criteria for classification of yarn contained in the tariff. It would be more appropriate to consider the rather looser and broader term so as to include all man made fibres. 6. emsp In these circumstances, therefore, I allow the appeal and set aside the Collector (Appeals) rsquo s order, restoring the Assistant Collector rsquo s order.
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2001 (12) TMI 727 - CEGAT, MUMBAI
Customs House Agents Licence - Suspension of ... ... ... ... ..... e satisfied. (c) In the present case, the appellant has been given a notice for proposing confiscation and imposing penalty etc. which is required to be adjudicated by the proper officers and he has also been served orders of an enquiry proposed under Regulation 23 of CHALR. Therefore we find no reason to justify this suspension under 21(2). 4. emsp The following case laws were relied by the appellants - Kothari Sons v. Commissioner of Customs, Mumbai reported in 1997 (94) E.L.T. 219 , M.M. Clearing v. Commissioner of Customs, Mumbai reported in 1999 (113) E.L.T. 241 , Union of India v. Shashi Deojha reported in 1999 (113) E.L.T. 385 , Ramniklal Salagia v. Commissioner of Customs, Mumbai reported in 2001 (132) E.L.T. 761 . We find the cases cited, help the case of the appellant to consider, setting aside the order of suspension under CHALR Regulation 21(2) 5. emsp In view of our findings we set aside the suspension arrived at under CHALR Regulation 21(2) and allow the appeal.
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2001 (12) TMI 726 - CEGAT, NEW DELHI
Modvat/Cenvat - Modvat on inputs - Duty paying documents ... ... ... ... ..... ) E.L.T. 247 (Tribunal-LB) 2000 (40) RLT 575. In this case, the Tribunal held that the case may be examined in the light of Notf. No. 7/99, dt. 9-2-99 and sent the matter back. In this case, I note that the Superintendent of the Range has given a certificate. However, from the certificate it is not clear as to whether the credit amount of duty was taken as Modvat credit. For the purpose of arriving at the correct amount of Modvat credit, description of the goods, assessable value of the goods, rate of duty, etc., are essential particulars, therefore, for the purpose of determining this aspect, I consider it necessary to examine these facts in detail. Accordingly, this aspect is referred back to the Assistant Commissioner to examine whether the correct amount was taken as Modvat credit looking to the description of the goods, assessable value of the goods and the rate of duty. 9. emsp The appeal is allowed by way of remand after dispensing with pre-deposit of duty and penalty.
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2001 (12) TMI 725 - CEGAT, NEW DELHI
Modvat/Cenvat - Modvat on inputs - Duty paying documents ... ... ... ... ..... ing credit on any particular copy of the invoice. The Rule, as it then was, required only that Modvat credit could be taken on the invoices. In the absence of mention of any particular copy of the invoice prior to 19-1-95 taking of Modvat credit was legal. In the instant case, I find that the invoices pertained to the period August, 1994 to October, 1994 and hence they were valid documents for the purpose of taking Modvat credit under Rule 57G of the Act. 7. emsp In regard to furnishing proper particulars, I find that the particulars have been furnished which are essential. No further particulars were required to take Modvat credit legally. Looking to the fact that the duty was paid properly in respect of the goods at the rate prescribed, I do not find any reason to deny Modvat credit on the strength of the said invoices. 8. emsp In view of the above findings, the appellants succeed. Accordingly, the appeal is allowed with consequential relief, if any, in accordance with law.
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2001 (12) TMI 724 - CEGAT, MUMBAI
EXIM Policy - Import - Solar lights - Consumer goods ... ... ... ... ..... ns of a solar cell in it utilised by the lamp for illumination. Neither the Commissioner (Appeals) nor the Assistant Commissioner say that the lamp could not function as a solar lamp and did not use solar energy. On the other hand, the Commissioner (Appeals) in support of conclusion, says that ldquo the impugned goods are solar gardenlite and interior decoration lamp is an energy saving rdquo , and she concludes that the imported goods are ordinary lights which have been manipulated and connected to solar cells. To my understanding in the form in which they were imported, the goods, in fact, are solar lamps, a lamp which functions by means of solar energy. The only difference between a solar light and ordinary lamp is source of energy. The goods that the appellant imported consisting of an assembly of solar panels and electrically operated lamps, were therefore solar lamps and therefore permitted for import. 5. emsp Accordingly the appeal is allowed. Impugned order set aside.
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2001 (12) TMI 723 - CEGAT, MUMBAI
Modvat/Cenvat - Modvat on inputs ... ... ... ... ..... provided in the rules that such dealers should be authorised or appointed by the manufacturer and cites the decision of the Tribunal in CCE, Meerut v. Uttam Industries Engineering Pvt. Ltd. - 1997 (89) E.L.T. 87. 3. emsp The Departmental Representative reiterates the findings of the Commissioner (Appeals). 4. emsp In the decision of the Tribunal, it noted that there was no requirement of appointment or authorisation by manufacturer of a dealer. This being the case, the ground for denial of the credit is not valid. 5. emsp Appeal allowed. Impugned order set aside.
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2001 (12) TMI 722 - CEGAT, MUMBAI
EXIM Policy - Import of cars - Exemption - Baggage - Confiscation - Penalty ... ... ... ... ..... mployment is 5 years. The contract of employment dated 11-10-99 which we have allowed to be brought on record shows that the contract is for the period of 5 years. We are therefore, of the view that the claim of the appellant that he was entitled to import the Porsche car which was in his possession in U.K. and used by him there will have to be examined afresh in the light of the new material in the form of contract of employment. We order accordingly. 3. emsp The impugned order is set aside and the appeal allowed by way of remand to the Commissioner for fresh decision on the entitlement of the appellant to the benefit of the Public Notice No. 3(RE-2000)/1997-2002, dated 31-3-2000. The Commissioner shall pass fresh order after extending a reasonable opportunity to the appellant of being heard in person. He shall also re-examine the issue of valuation of the Porsche car in the light of the submission of the appellant regarding extending the benefit of depreciation for the car.
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2001 (12) TMI 721 - CEGAT, MUMBAI
Modvat/Cenvat - Modvat on inputs ... ... ... ... ..... icate such curable defects cannot deprive the appellant from the availment of substantive benefit of Modvat credit. In any case the appellant has obtained a certificate from the Range Superintendent who is an officer of the Revenue Department and he was required to issue the certificate after due satisfaction of the nature of the goods and the duty payment particulars that he has certified. In case he has not used the correct proforma he could be asked to substantiate and correct the same. The entire episode did not call for any penalty whatsoever on the appellant company. 4. emsp I would therefore set aside the order and remand the matter back to the original authority to satisfy itself after getting the verification reports from the concerned Range Superintendent who issued the 57E certificate regarding the duty paid nature of the goods and thereafter grant the same. The penalty in any case is not called for. 5. emsp This appeal is therefore disposed off in the above terms.
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