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Case Laws
Showing 161 to 180 of 354 Records
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2003 (6) TMI 293 - CESTAT, NEW DELHI
Rectification of mistake - Payment of duty ... ... ... ... ..... payment of duty by them from the Modvat credit was valid. 3. emsp We have heard both sides and gone through the record. It has not been disputed before us that for discharging the duty liability in terms of Section 3A of the Act, the payment was required to be made through PLA and no part of payment could be made through Modvat credit. The certificate of payment was produced by the Counsel during the course of arguments in the main appeal, shows that part of payment i.e. Rs. 17,36,391/- was made by the assessees through Modvat credit. This payment prima facie could not be taken to be valid payment. The Tribunal took into account this as a valid payment and set aside the order-in-original which was appealed against the respondents in the appeal. This mistake is thus quite apparent on the face of the impugned final order. 4. emsp Consequently, the ROM of the Revenue is allowed. The impugned final order is recalled. The appeal is ordered to be posted for rehearing on 21-8-2003.
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2003 (6) TMI 292 - CESTAT, NEW DELHI
Payment of duty - Default ... ... ... ... ..... x months as per earlier orders of the original authority, a further denial of that facility for another 2 months was not fair. Ld. Commissioner (Appeals) has relied on the Tribunal rsquo s decision in M/s. Calcom Vision Ltd. v. CCE, Meerut 2002 (142) E.L.T. 383 to hold that it is not mandatory that, in all cases, the facility should be forfeited for the maximum period. Thus, apparently, ld. Commissioner (Appeals) has exercised his discretion in the matter and held that forfeiture of the facility for a further period of 2 months was not fair and just as the party had already suffered for a period of 6 months. This Tribunal will not be inclined to interfere with such lawful exercise of discretion by the first appellate authority. It is also noteworthy that, in the present appeal, the appellant has not faulted the reliance placed by the Commissioner (Appeals) on the Tribunal rsquo s decision in Calcom Vision Ltd. (supra). In the result, the appeal fails and the same is rejected.
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2003 (6) TMI 277 - CESTAT, MUMBAI
Manufacture
... ... ... ... ..... e sentence such as, iron, cobalt and tungsten are hard enough to be able to scratch the diamond which the product is used to polish, it would be dissoluble to detain as the finished product as to the abrasive quality of the test and which is going to its use in cutting and polishing diamond. This assumption by the Commissioner is in fact incorrect. McGraw Hill Dictionary of Science and Technology 82 Edition at page 162 (Volume 4) says that ldquo diamond crystals can be cut only by diamond dust on a lap ... rdquo . We are therefore satisfied that the processes undertaken by the appellant are essentially in order to remove impurities present in it and do not result in emergence of a new product with distinct name, character and use and therefore did not amount to manufacture. That being the case, we do not propose to go into the classification of the product. 6. emsp There was therefore no justification for imposition of penalty on the assessee or on its partners and employees.
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2003 (6) TMI 276 - CESTAT, MUMBAI
Classification ... ... ... ... ..... s to be regarded as being a part of the complete system if it is connectable to the central processing unit either directly or through one or more units and is specifically designed to be part of such a system. The Explanatory Notes to the Harmonised System of Nomenclature explains that the interconnection between the central processing unit and the unit may be by material means e.g. cables, or non material means (e.g. radio or optical links.) The unit in question satisfies both the requirements. It is part of the data processing system, consisting of the central computer in the United States of America and the units in the member establishments, and it is connected to the central processing unit. The unit therefore would be considered as a part of the system and would fall for classification in Chapter 84.74. Since it is in the nature of computer equipment specified in the notification, it would be entitled for the benefit of the notification. 7. emsp Appeal allowed in part.
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2003 (6) TMI 275 - CESTAT, MUMBAI
Demand - Provisional assessment ... ... ... ... ..... missioner rsquo s order is not one of simply finalising the provisional assessment. He confirmed the proposal to the notice to recover duty. In his order he has ordered that the bill of entry had assessed finally and simultaneously asked recovery of special additional duty of customs which he found payable. The fact that the bill of entry has not yet been finally assessed is clear from paragraph 36 of his order where he has said that he refrained from invoking a penal provisions of the Act ldquo as the goods were assessed provisionally and the final assessment by the concerned officer would now be initiated. rdquo Clearly therefore there was no basis for confirming the duty short-paid. That is primary and can only take place after the goods are finally assessed to duty. 4. emsp The appeal is accordingly allowed and the impugned order set aside. It will be open to the department to initiate proceedings for short-levy in accordance with law after the goods are finally assessed.
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2003 (6) TMI 274 - CESTAT, MUMBAI
Classifiaction ... ... ... ... ..... the transmission of motion, in this case by converting rotaries to reciprocal motion. This is the reason that the authorities have advanced for classifying it in Heading 84.83. However, it is not everything that is used to transmit motion that is classifiable in Heading 84.83. It is only the transmission shafts which would be so classifiable. Thus the shaft which is connected one under to the cam and the other under to the pusher may perhaps be classifiable in that heading. The cam, merely because it is used in the function of transmitting motion, cannot be so classified. It is not specified in that heading. It is not the department rsquo s case that cam is synonymous with the shaft. There is therefore no basis for classification of the goods as determined by the department. There being no other argument in support of that classification, the classification claimed by the appellant has to be accepted. 4. emsp The appeal is accordingly allowed and the impugned order set aside.
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2003 (6) TMI 272 - CESTAT, MUMBAI
Classifiaction ... ... ... ... ..... llers. A handbag is normally understood to mean a bag carried generally by a woman which contains articles of cosmetics, make up goods, writing instruments etc. A handbag may be used in cases where there is no travel, for example a woman going a neighbour rsquo s house or flat. However, even by giving the most widest latitude in explaining the scope of the term ldquo similar goods rdquo to include goods similar to travel goods and similar to handbags, it would not still be possible to fit in key cases or pouches in it. A key case is used to hold keys. These keys may be of any kind, a motor car key, a key of a cupboard or safe deposit vault which need not necessarily be related to travel. Nor is it in any case similar to a handbag on the contrary, it may very often part of the contents of the handbag. These goods made of plastic are hence correctly classifiable in Heading 3926.90. 7. emsp The appeal is accordingly allowed and the impugned order set aside. Consequential relief.
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2003 (6) TMI 271 - CESTAT, MUMBAI
Stay - Exemption under Notification No. 125/84-C.E. ... ... ... ... ..... otification No. 125/84 is not applicable, while in ground No. (vi) a contrary admission is made. If it is the case of Revenue, that the goods are exempted under Notification No. 125/84, then why are they challenging this order in Appeal is not known. It is, therefore, required that such stay applications made on conflicting grounds on a possible intention of the Government cannot be accepted. 3. emsp Since, none of the grounds could be sustained on the prima facie reading of the law laid down by the Larger Bench of this Tribunal and Supreme Court, we find no reason to invoke our inherent jurisdiction to stay operation of the Commissioner (Appeal) rsquo s order, and grants the benefit of an exemption Notification No. 125/84 which as per the submission of Revenue in this case is applicable and also the fact that there is no refund which is required to be stayed as no quantification has been arrived at. 4. emsp In view of the findings arrived at the stay application is rejected.
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2003 (6) TMI 270 - CESTAT, BANGALORE
Penalty - Misdeclaration - Intention to evade duty ... ... ... ... ..... ntimated the Customs authorities (letter dated 28-3-2000) that part of the goods are going to be exported to Bangladesh. They had also the option of Warehousing the imported goods without payment of any Customs Duty and then carry out exports. It is hard to believe that an importer who had an option not to pay any customs duty at all, would make a mis-declaration and pay duty. In the present case, since Customs authorities had been appraised of the intention to export part of the goods, it cannot be validly said that they were making a misdeclaration. When true facts are known to both the sides, it is not open to one side to allege that the other side was making mis-declaration with intent to defraud the other. In any case, almost the entire differential duty now paid by the appellant is available as duty drawback to the appellants. 3. emsp In the light of what has been stated above, the appeal is allowed as prayed for, by setting aside the penalty imposed on the appellants.
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2003 (6) TMI 269 - CESTAT, MUMBAI
Cess on crude oil - Demand - Limitation ... ... ... ... ..... as not of water and sedimentation. The Commissioner has not accepted this plea on the ground that this test report was not submitted either by the appellant or the Indian Oil Corporation for which purpose he relies upon the letter dated 29-5-2000 of the Jurisdictional Superintendent. This letter was written after hearing was concluded and therefore did not have an opportunity to rebut its contents. Counsel for the appellant now says that he will be able to do so. He also points out that the letter and the circular give rise to a belief in the mind of the appellant that duty was not required to be paid on water contained of the oil. In the light of this submission, the question of limitation will also have to be gone into. 18. emsp The appeal is therefore allowed, the impugned order set aside and the matter remanded to the Commissioner. The Commissioner shall decide the matter afresh in the light of our observations, after giving an opportunity to the appellant of being heard.
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2003 (6) TMI 268 - CESTAT, KOLKATA
... ...
... ... ..... missioner of Central Excise, Raipur 2002 (146) E.L.T. 147 (Tri - Del.), Hon rsquo ble Tribunal granted relief to the appellant. 5. emsp In the light of above, the imposition of penalties cannot be sustained and accordingly, I set aside that part of the impugned order of the Assistant Commissioner, and allow the appeal. rdquo 3. emsp The Revenue in their memo of appeal has merely contended that the penalty is imposable and the Tribunal rsquo s judgment is not applicable as it has not laid down any legal proposition. However, I am of the view that the service tax was not paid at the relevant time as there was a judgment of the Hon lsquo ble Supreme Court in favour of the respondents. It is only subsequently on account of retrospective amendment of the provisions, service tax become payable, which the assessee has paid along with interest. In the circumstances, no infirmity is found in the views taken by the Commissioner (Appeals). Revenue rsquo s appeal is accordingly rejected.
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2003 (6) TMI 267 - CESTAT, NEW DELHI
... ...
... ... ..... ulates that normal whole sale price shall constitute assessable value. Further, Central Excise Valuation Rules, 1975 provide Rule 6(a) that due deduction shall be allowed from the retail price, in case the assessable value is required to be determined from the retail price. During the hearing of the case, the ld. Counsel for the appellant emphasized that the duty demand made is contrary to the terms of the statute and decision of the Tribunal in the case of Modi Zerox Ltd. - 1989 (40) E.L.T. 481. 5. emsp A perusal of the legal provisions contained in Section 4 of Central Excise Act and Central Excise (Valuation) Rules, 1975 6(a) make it clear that assessment at retail price is not contemplated in law. Assessable value shall either be the whole sale price or in its absence, retail price, less due deductions. Duty demands have been made totally contrary to these provisions and aforesaid decision of the Tribunal. The demands are, therefore, set aside and the appeals are allowed.
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2003 (6) TMI 266 - CESTAT, MUMBAI
Import - Advance Licence - Penalty ... ... ... ... ..... the broker was concerned with the sale. The fact that he emphasises, the sale was represented in cash, does not appear to us to have any significance. There was no requirement in law in force prohibiting sale of goods against payment in cash. We therefore do not find basis for penalty on Sunil Shah. The Commissioner also lacks reason with regard to penalty on Paras Warehousing Corporation, merely saying that it was connected with the import storage and disposal of the goods. The contention in the appeal of Paras Warehousing Corporation, that it was not required to show cause proposing imposition of penalty, is seen on verification to be correct. The notice only called upon it to show cause why the goods in its storage should not be confiscated, and while he calls upon the other two appellants to show cause why penalty should not be imposed. The imposition of penalty is therefore without any authority. 12. emsp Appeal C/147/95 allowed in part. Appeals C/130 and 138/95 allowed.
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2003 (6) TMI 265 - CESTAT, CHENNAI
Classification - Demand - Limitation - Valuation accepted by department ... ... ... ... ..... and Anr. v. UOI (supra) Medwin Imageology Center Ltd. v. CC, Hyderabad (supra) and that of Life Line Systems Pvt. Ltd. v. CC, New Delhi (supra). 19. emsp We also agree with the ld. Counsel that in the present case the extended period of limitation is not invocable when the split up value of the item had been furnished and there was no challenge to the valuation taken up by the department. The valuation has been accepted. Therefore, it cannot be held that there was any suppression in the matter. In this regard, the citation referred to by the Counsel is applicable i.e. Tata Infotech Ltd. v. CC, Mumbai/New Delhi (supra). 20. emsp The order of confiscation is also not sustainable in the light of the judgment rendered by this Bench in the case of CCE, Madras v. Aradhi Associates (supra). 21. emsp In that view of the matter, the contention of the appellant is accepted and the impugned order is set aside by allowing the appeal with consequential relief, if any. Ordered accordingly.
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2003 (6) TMI 264 - CESTAT, KOLKATA
Confiscation and penalty ... ... ... ... ..... any allegation is made that the unaccounted for goods were kept with an intention to evade payment of duty rdquo . He has further observed that in such case Rule 226 provides for action for non-maintenance of books of accounts but the said Rule has since been repealed with effect from 12-5-2000 and inasmuch as the appellant has contravened the provisions by not maintaining records properly, penalty is imposable under Rule 173Q(1)(b). However, I find that the appellants have given sufficient plausable explanation for the excess found material not entered in RG-I records, which explanation is in accordance with ISI standard. By allowing tolerance on the weight of leaves, I find that the excess weight in fact, was notional than real. In the circumstances, I find no justification in confiscation of the goods or for imposition upon the appellants. Impugned order is set aside and the appeal is allowed with consequential relief to the appellants. Stay petition also gets disposed of.
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2003 (6) TMI 263 - CESTAT, NEW DELHI
Re-adjudication - Valuation ... ... ... ... ..... e case of Eicher Tractor (supra) applies squarely. It has been held by the Supreme Court that ldquo unless the price actually paid for the particular transaction falls within the exception, the Customs Authorities are bound to assess the duty on the transactional value ------ both Section 14(1) and Rule 4 provide that the price paid by an importer to the vendor in the ordinary course of commerce shall be taken to be value in the absence of any special circumstances indicated in Section 14(1) and particularly in Rule 4(2). rdquo The learned Advocate has pointed out that the invoice is for seconds/defective goods and the price declared therein is the transaction value which is acceptable in view of the decision of the Supreme Court in the case of Eicher Tractors Ltd. In view of the fact that none of the exceptions contained in Rule 4(2) applies to the present case, the transaction value has to be accepted. Accordingly, we set aside the impugned order and allow both the appeals.
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2003 (6) TMI 262 - CESTAT, MUMBAI
Valuation - Samples ... ... ... ... ..... medicament of which they were samples. In its decision in Cheryl Laboratories Pvt. Ltd. v. CCE - 1997 (93) E.L.T. 129 and in CCE v. Mayo India Ltd. - 2001 (127) E.L.T. 192 the Tribunal had held that the value of these samples should be determined, based upon the value of comparable goods manufactured by the same assessee. 2. emsp The Counsel for the respondent contends that this is incorrect. He says that it will be more appropriate to accept the cost of manufacture to apply Rule 6(b)(ii) to determine the value of cost of manufacture. 3. emsp We are unable to agree. There is no difference whatsoever in the quality or nature of the medicament that the respondent sells than those of this sample. There may perhaps be in the difference in quantity and more appropriate method to apply as the value of the medicament that the assessee sells. That would be a closer approximation that the cost of manufacture. 4. emsp Appeal allowed and the order of the Assistant Commissioner restored.
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2003 (6) TMI 261 - CESTAT, MUMBAI
Coil, insulated coil - Marketability - Manufacture ... ... ... ... ..... .T. 262 is misplaced. The Tribunal in that decision held that coil themselves were unmarketable (came into existence by being worn out). The mere fact that one end of the electrical conductor is welded to the end of the conductor of the coil cannot justify that insulated coil is not marketed. All it needed was extremely easy simple operation of breaking it. We however see merit in the subsequent contention that insulation of the electrical wire does not by itself amount to manufacture. Such insulation does not change the nature of the electrical wire, wire which is conductor of electricity. Its character and use was not altered by the fact of insulation. Both before and after insulation serve the same purpose. Insulation therefore would not amount to manufacture. The same view has been taken by the Tribunal in I.G.E (India) Ltd. v. CCE - 1998 (101) E.L.T. 362. Consequently the department rsquo s appeal does not survive. 3. emsp Appeal 1037/98 allowed. Appeal 343/99 dismissed.
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2003 (6) TMI 260 - CESTAT, MUMBAI
Countervailing duty - Exemption - TV sets ... ... ... ... ..... s and Measures (Packaged Commodities) Rules, 1977. Sub-rule (2) provides that the responsibility for making the declaration is cast on the importer. This does not mean, as the departmental representative says, that the declaration should be made by the importer alone and no one else. All that sub-rule (2) provides is up to the importer to ensure that these declarations are made in the appropriate manner when the goods are imported and it is he who has to answer that the provisions of sub-rule (1) are shown to have been complied with on importation. This sub-rule does no way prohibits the importer in acting in such a manner as to ensure that the declarations are put on the packages before they arrive in India. We do not find anything in these rules that provides that the retail price must be put on the imported goods only by their importer after their arrival in India. The benefit of the exemption could not therefore be denied. 7. emsp Appeal allowed. Impugned order set aside.
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2003 (6) TMI 259 - CESTAT, NEW DELHI
Rectification of mistake ... ... ... ... ..... nd having simply setting aside the order under appeal, without even dealing with the case on merits itself, a mistake of law apparently has crept in the impugned order. The show cause notice had already been served on the respondents and the adjudicating authority earlier decided the case without affording them proper opportunity of filing reply to that notice. The Tribunal through the impugned order, no doubt, rightly set aside that order, but under the law the case was required to be sent back to the adjudicating authority for fresh decision after affording an opportunity of hearing to the present respondents. The matter has not in any manner become infructuous in these circumstances. 6. emsp Since the impugned order suffers from mistake of law apparent on the face of it, in the light of the discussion made above, the ROM application filed by the Revenue is allowed and the impugned order is, therefore, recalled. 7. emsp The appeal is posted for regular hearing on 24-6-2003.
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