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Showing 101 to 120 of 354 Records
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2003 (6) TMI 372 - CESTAT, NEW DELHI
Appeal - Limitation - Condonation of delay ... ... ... ... ..... should have been accepted, especially when he had no motive to deliberately commit delay in filing the appeals, when the entire duty amount and 25 of the penalty amount already stands deposited by the company. The prayer of the appellants for condonation of delay in filing the appeals which is of 40 days, in my view, deserves to be allowed and they must be heard on merits. Too much technical view could not be taken and the appellants rsquo company could not be denied of their right to be heard on merits in view of the facts and circumstances, detailed above. 5. emsp In view of the discussion made above, the impugned order of the Commissioner (Appeals) is set aside and the delay of 40 days in filing the appeals by the appellants rsquo company alone is condoned. The matter is sent back to the Commissioner (Appeals) for hearing the appeal of the appellants rsquo company only on merits. The appeal of the appellants accordingly stands disposed of and so also the stay application.
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2003 (6) TMI 371 - CESTAT, MUMBAI
Penalty - Duty, payment of, before show cause notice issued ... ... ... ... ..... cited, in the light of the facts of this case, it has to be held that there can be no general proposition that whenever duty was paid before the issue of a Show cause notice, no penalty need be imposed, especially when it is found that liability to pay penalty was mandatory under Rule 173Q as held by the Supreme Court in the case of Zunjarrao Bhikaji Nagarkar - 1999 (112) E.L.T. 772 (S.C.). In a case, however, there would be circumstances which may lead of conclusion that there are no reason to sustain the order of penalty. The facts of each case would have to be examined in detail and thereafter penalties are to be determined, in context of the nature of violation and conduct established from facts of each case. Keeping in mind the circumstances of this case and the facts as on record, we would consider the penalty of Rs. 1 lakh as imposed under 173Q(1)(a) to be excessive and reduce the same to Rs. 5,000/- only. 5. emsp The appeal is therefore partly allowed in above terms.
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2003 (6) TMI 370 - CESTAT, CHENNAI
Cenvat/Modvat - Modvat on capital goods ... ... ... ... ..... undisputed fact is that w.e.f. 23-7-96 vide Notification No. 14/96-C.E. (N.T.), the air-conditioning appliances and machinery falling under Heading 84.15 have been excluded from the list of specified capital goods under Rule 57Q of the CER rsquo 44 and therefore, they are not entitled for the Modvat credit after 23-7-96. Inasmuch as they have received the goods vide Notification No. 14/96-C.E. (N.T.), dated 23-7-96, both after these items are excluded from the specified capital goods i.e. after 23-7-96, they are not entitled for taking Modvat credit on such capital goods. 8. emsp In view of above facts and circumstances of the case, I allow the appeal filed by Revenue by setting aside the impugned order passed by the learned Commissioner (Appeals), Chennai to the extent of Modvat credit allowed on air-conditioning machinery and appliances as contained vide Para 5(v) of the impugned order. With the above modification, the appeal of the Revenue is allowed. Ordered accordingly.
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2003 (6) TMI 369 - CESTAT, NEW DELHI
Cenvat/Modvat - Duty paying documents - Penalty - Imposition of ... ... ... ... ..... ral provisions of Rule 57-I were not applicable. But such is not the situation in the present case. Similarly, the ratio of law laid down in Nagarjuna Agni Tech Ltd. (supra), that where the demand had been set aside by the adjudicating authority, penalty would not be imposable, is not attracted to the facts of the present case as that was a case where execution of bond for the procedure of AR 4 was not followed by the party, but the assessee was entitled to the benefit of the Board rsquo s Circular. The duty for that reason was not confirmed and the penalty was set aside. But in the present case, the respondents had failed to follow the procedure for availing the Modvat credit as observed above. 7. emsp In the light of the discussion made above, in my view, the impugned order of the Commissioner (Appeals) cannot be legally sustained and is set aside. The order-in-original of the adjudicating authority is restored. Both the appeals filed by the Revenue are allowed accordingly.
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2003 (6) TMI 368 - CESTAT, MUMBAI
Modvat/Cenvat - Modvat on inputs ... ... ... ... ..... ed to undergo transformation in the course of the manufacture of final product, loosing its identity in the process, at stages prior to the emergence of the final product. In other words, an input is often transformed into an intermediate product arising in the manufacture of final product, it would not be correct to say that in that situation, the input has not been used in relation to the manufacture of final product. In the present case, the input was intended to be used in the manufacture of final product and used in relation to such manufacture. The inputs contained in the semi-finished goods, therefore had been used in the manner provided by law. There was therefore no reason why credit should be denied. We therefore see no reason to interfere rdquo . The ratio of the above decision is fully applicable on the facts of the present case as the inputs are used in the manufacture of final product, therefore I find no infirmity in the impugned order. The appeal is dismissed.
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2003 (6) TMI 367 - CESTAT, CHENNAI
... ...
... ... ..... ppellants were claiming the benefit of exemption Notifications viz. 281/86-C.E. and 184/86-C.E. The Commissioner himself has allowed the exemption under Notification No. 184/86-C.E. In such facts and circumstances, it cannot be said that the appellants suppressed facts with intention to evade payment of duty. Hence the larger period of limitation under the proviso to sub-section (1) of Section 11A of the Central Excise Act is not invocable in this case. 21. emsp I have already held that, both on merits and on limitation, the demand of duty on the escalation cost of the goods supplied by the appellants to M/s. CCI under the project contract is not sustainable. The appeal of the party is liable to be allowed as held by the ld. Member (J). Sd/- (P.G. Chacko) Member (J) MAJORITY ORDER In terms of majority order, the impugned order is set aside and appeal is allowed. Majority Order pronounced in open court on 3-6-2003. Sd/- (Jeet Ram Kait) Member (T) Sd/- (S.L. Peeran) Member (J)
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2003 (6) TMI 366 - CESTAT, NEW DELHI
Remission of duty - Alcohol - Loss due to natural evaporation ... ... ... ... ..... appellants to produce authenticated documents before the Commissioner. It will also be open to them to produce authenticated copy of the State Excise Commissioner rsquo s order referred to in the applications. In the absence of specific procedure having been laid down for the purpose of sub-rule (1A) of Rule 49 and in view of the fact that the appellants rsquo factory is under physical control of the State Excise authorities as also of the fact that there is an elaborate procedure laid down by those authorities governing remission of State excise duty, I am of the view that, under sub-rule (1A) of Rule 49, the Commissioner shall have due regard to the above documentary evidence from the State Excise authorities. 6. emsp In the result, the impugned order is set aside and this appeal is allowed by way of remand. The jurisdictional Commissioner shall pass a fresh speaking order on the remission applications as above after giving the party a reasonable opportunity of being heard.
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2003 (6) TMI 365 - CESTAT, NEW DELHI
Appeal - Restoration of ... ... ... ... ..... provisions of Section 35F of the Act. The Applicants have themselves mentioned in their present application that the SLP filed against the dismissal of main appeal has been dismissed by the Supreme Court ldquo due to non-compliance of pre-deposit condition. rdquo The dismissal of appeal has thus attained finality. Once the appeal filed by the applicants has been dismissed, the Revenue is at liberty to realise the amount of duty confirmed against and penalty imposed on them. The Revenue with a view to realise its due has taken the action of attaching their goods. Such attachment has nothing to do with the Stay Order passed by the Tribunal as the appeal itself stands dismissed by the Tribunal. The decision relied upon by them is not relevant as the facts are different inasmuch as the Tribunal was hearing the Stay Application in the said matter whereas in the present case, the appeal itself has been dismissed. Accordingly, there is no merit in the application which is rejected.
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2003 (6) TMI 364 - CESTAT, KOLKATA
Exemption - Nepal Treaty of Trade - SAD - Notification No. 37/96-Cus. - Promissory estoppel - Meaning - Nepal Treaty of Trade - Interpretation of Statutes - Retrospectivity
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2003 (6) TMI 363 - CESTAT, KOLKATA
Confiscation - Mis-statement/suppression ... ... ... ... ..... fabric. The appellant according to their own understanding has classified the goods under heading 5407.61. It is also a fact that the appellant was never approached by the Customs authorities to give more details about the technical specification of the fabrics. The appellants have not contested the classification inasmuch as there is no duty liability on them being a 100 export oriented unit. There are plethora of judgments to the effect that the wrong claim of classification cannot lead to the allegations of the mis-statement or suppression on part of the importer. I also note that the Tribunal in the case of identical matter of M/s. Jay Kay Exports vide its order No. A-1019/Kol/2002, dated 11-10-2002 2003 (161) E.L.T. 443 (Tribunal) has set aside confiscation and personal penalty upon the appellants therein. 6. emsp In view of the foregoing, 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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2003 (6) TMI 362 - CESTAT, NEW DELHI
Penalty for non-filing of declaration for Modvat ... ... ... ... ..... that ldquo Both the type of schemes i.e. Proforma Credit and Modvat Credit allowed the assessees to take the credit of duty paid on inputs or the raw materials used in the manufacture of the final product. As such the Additional Commissioner has rightly observed that the irregularity is only in respect of switching over from one credit of duty scheme to another credit of duty scheme. It is only that the credit was being availed by the appellants under the Rule 56A whereas the same was available to them under Rule 57A. rdquo The Tribunal, therefore, allowed the appeal filed by the Appellants. In the present matter also, we observe that necessary information regarding inputs and the final products has been furnished by the Appellants while applying for Proforma Credit. Once they switched over from Proforma Credit scheme to Modvat Credit scheme, the penalty is not imposable in not filing the declaration in time. We, therefore, set aside the impugned Order and allow the appeals.
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2003 (6) TMI 361 - SETTLEMENT COMMISSION, CUSTOMS & CENTRAL EXCISE, N
Settlement Commission - Additional disclosure of liability ... ... ... ... ..... tions of Section 32E of the Act. 5. emsp The Commission has gone through the submissions made by ld. Representative of Revenue and ld. Advocate for the applicant. The Commission finds that a SCN has been issued demanding duty of Rs. 2,98,900/- which has been admitted in full by the applicant. The Commission finds that the applicant has fulfilled all the conditions of Section 32E of the Central Excise Act. 6. emsp The Commission, therefore, allows the application to be proceeded with under sub-section (1) of Section 32F of the Act. The applicant has already paid the amount of Rs. 3,00,000/-. The admitted liability of Rs. 2,98,900/- may be adjusted by the Commissioner of Central Excise from the said deposit of Rs. 3,00,000/- and the Commission informed of the same. 7. emsp With the admission of the application, the Bench acquires the exclusive jurisdiction to exercise the powers and perform the functions of any officer of Central Excise offices under Section 32-I(2) of the Act.
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2003 (6) TMI 360 - CESTAT, CHENNAI
Cenvat/Modvat - Modvat on capital goods ... ... ... ... ..... change at all. He also submitted that no other units who are using the moulds have been issued any show cause notice and they have only been singled out by the department for which reasons, they have come in appeal. 4. emsp Ld. DR Shri C. Mani submits that prior to CENVAT Rules, 2001 the definition of capital goods included the components, spare parts and accessories of all machines, plants, tools or appliances etc. Ld. DR reiterates the order impugned. 5. emsp I have considered the submissions made by both sides and I find that moulds and dies were mentioned prior to 1994 also and after CENVAT Rules, 2001, there is no change. Moulds and Dies have again been mentioned in the CENVAT Rules, 2001. In view of this position, the Centre Column and Bottom Plates are part and parcel of moulds and are constituted as moulds and Modvat credit cannot be denied to them when there is no change in the law. I, therefore, allow the appeal. The stay petition also gets disposed of accordingly.
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2003 (6) TMI 359 - CESTAT, CHENNAI
Rebate of duty - Fraudulent claim for encashing unutilised Modvat credit - Demand - Limitation - Suppression - EXIM - Export of medicine - Statement - Threat of arrest used
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2003 (6) TMI 358 - CESTAT, MUMBAI
EXIM - Cordless telephones ... ... ... ... ..... ctions with regard to the use of telephones on its customers. These cannot be considered to be prohibition of the import. 6. emsp The ITC HS Classification 2001 edition indicates cordless telephones in two headings, one in heading 85.70 and the other is in heading 85.25. The first heading is essentially for line telephony and telegraphy apparatus for wireless telephone and telegraphy apparatus. In each of these headings, cordless telephones are specifically indicated to be free for import. We do not find anything in the Indian Telegraphy Act, 1885 or the Indian Wireless Telegraphy Act, 1933, which confers a power upon any authority to prohibit import of such goods. It has therefore to be concluded that the import of these goods was not in contravention of any provision contained in, or imposed under, any law. Confiscation of goods under clause (d) of Section 11 and penalty imposed cannot be sustained. 7. emsp The appeal is accordingly allowed and the impugned order set aside.
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2003 (6) TMI 357 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Penalty ... ... ... ... ..... st of findings against the CHA in the impugned order is that they failed to discharge certain obligation under Regulation No. 14 of the CHA Regulations. There is no evidence, on record, of any departmental action having been taken against the CHA under Regulation No. 21 or 23. It appears that the omission found against the applicant under the CHA Regulations has been straightaway taken as a ground for penalty under Section 114 of the Customs Act. This action prima facie does not disclose bona fides. When the bona fides of the department is in doubt, any finding of mala fides against the party, as recorded by the Commissioner, cannot be prima facie sustainable. In this view of the matter, I am inclined to hold that the applicants have made out a strong case for the purpose of Section 129E of the Customs Act. Accordingly, this application is allowed. There will be waiver of pre-deposit and stay of recovery in respect of the penalty amount. The appeal will be heard on 24-7-2003.
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2003 (6) TMI 356 - CESTAT, NEW DELHI
Demand - Limitation - Extended period - Suppression of facts ... ... ... ... ..... d the order dated 18-6-97. The reference is made only to contentions relating to submission of the balance-sheet. The Commissioner observes that no evidence is produced by the assessee to show that the balance-sheets were made available to the department as claimed. In the light of the above facts, we are of the view that invoking larger period of limitation in this case was totally unjustified. When the department is aware of the fact that second Appellant is the holding company of the first appellant and major portion of the sale is to the second appellant and show cause notice had been issued on that basis as early as 6-7-97, department cannot be heard to contend that the first appellant has suppressed the fact of second appellant being its holding company. Since we are inclined to allow the appeals on the ground of limitation, we do not propose to go into the other contentions raised in this appeal. 8. emsp We therefore, set aside the impugned order and allow the appeals.
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2003 (6) TMI 355 - SETTLEMENT COMMISSION, CUSTOMS & CENTRAL EXCISE, N
Settlement Commission - Admission ... ... ... ... ..... lose how the duty payable has escaped payment, the modus operandi involved, besides explaining the manner of arriving at the duty amount disclosed. The application does not contain these details. Instead the applicant has maintained the stand that the activity carried out by them did not amount to manufacture requiring them to pay Central Excise duty on the goods. 5. emsp Similarly, the Applicant rsquo s submission to ignore the condition relating to non-filing of returns is not convincing. The proviso (a) of Section 32E(1) is categorical that no application is entertainable unless returns have been filed. There is no room for relaxing this condition. Hence, the Applicant rsquo s request to take a broader view for admitting the case on the ground that the necessary documents regarding the production of the goods is not admissible. 6. emsp In conclusion, the Application does not fulfil the conditions of Section 32E of the Act. In the circumstances, the application is rejected.
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2003 (6) TMI 354 - CESTAT, MUMBAI
Demand - Manufacture ... ... ... ... ..... f bleaching and dyeing undertaken by the appellants on the duty paid yarn prior to 16-3-1995 did not amount to manufacture. rdquo Emphasis supplied and no appeal against this finding has been shown to be filed. (b) The above finding of the Commissioner (Appeals) on the process of bleaching and dyeing undertaken by the appellants has not been considered and or differentiated by the learned Commissioner (Appeals) in the order non-impugned. Therefore, the impugned order is required to be set aside and remitted back to Commissioner (Appeals) to re-determine the basic issue, of whether the process undertaken would amount to manufacture or not. Thereafter he should proceed to arrive at his findings on duty and penalty, if any. Needless to add that while doing so, he would afford an opportunity to personal hearing to the appellants. It is made clear that all issues in the remand proceeding are kept open for both sides. 4. emsp Appeal disposed off as remand to Commissioner (Appeals).
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2003 (6) TMI 353 - CESTAT, NEW DELHI
SSI Exemption - Captive consumption ... ... ... ... ..... tion by a manufacturer from one or more factories, from a factory of one or more manufacturers should not exceed Rs. 300 lakhs in the preceding financial year. There is no evidence on the record to suggest that this provision of the Notification had been violated by the appellants for having crossed limit. The goods captively used in the factory by the appellants i.e. inputs during the preceding year could not be included while computing the value of Rs. 300 lakhs as is evident from the perusal of the Notification. The authorities below have apparently erred in taking into consideration the value of those clearances and denied the benefit of the Notification in question No. 9/99 to the appellants. They are, in my view, entitled to the benefit of this Notification. 4. emsp In view of the discussion made above, the impugned order of the Commissioner (Appeals) is set aside. The appeal of the appellants stands allowed with consequential relief, if any permissible under the Rules.
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