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Case Laws
Showing 141 to 160 of 468 Records
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2003 (8) TMI 450 - CESTAT, NEW DELHI
Remand - Interest - Delayed refund of pre-deposit ... ... ... ... ..... ed Counsel, the learned Commissioner (Appeals) had no such power of remand. Apart from this, the lower appellate authority held that no interest was payable under Section 11BB of the Central Excise Act to a claimant of refund of pre-deposit. Again, it has taken an erroneous view, regardless of the settled law on the point. It has been held by the Supreme Court in the case cited by the Counsel that interest is payable on delayed refund of pre-deposit. The Apex Court, in the case before it, allowed interest at the rate of 12 . 3. emsp The order of the Commissioner (Appeals) is set aside and the present appeal is allowed. The original authority is directed to refund the amount of pre-deposit to the appellants with interest at the rate of 12 p.a. from the date immediately after the expiry of three months from the date of refund claim to the date of payment. The direction shall be implemented within a period of two months from the date of receipt of a certified copy of this order.
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2003 (8) TMI 449 - CESTAT, NEW DELHI
Demand - Clandestine removal ... ... ... ... ..... lag in 1996-97 and 1997-98. This is sufficient to manufacture the quantity of slag cement, in respect of which duty has not been demanded. It has been contended by the Appellants that the quantity of slag cement said to be charged to duty, could not be produced out of the slag procured by them. This is also a fit case for invoking the extended period of limitation for demanding Central Excise duty under Section 11A(1) of the Central Excise Act as manufacture of slag cement was never brought to the notice of the Department. We agree with the submissions of the learned Senior Departmental Representative that the declaration filed by them under Rule 173B had only reproduced the description given in Tariff Heading 25.02 and nowhere in the RG 1 or RT 12 it is reflected that they were manufacturing slag cement. Letter dated 14-2-97 also shows use of slag in cement and not specifically in the manufacture of slag cement. We, therefore, uphold the impugned Order and reject the Appeal.
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2003 (8) TMI 448 - CESTAT, NEW DELHI
Rectification of mistake - Limitation - Delay in filing application ... ... ... ... ..... or the respondent has also brought to our notice the decision of the Apex Court in the case of CCE v. M.M. Foam 1991 (55) E.L.T. 289 wherein the Apex Court has held that the words and phrases ldquo from the date of the decision of order rdquo means the date of signing of the order and not the date on which the order was received. The learned Counsel for the respondents has also stated that in the light of the decisions in the case of Swastik Paper Ltd. v. CCE 1989 (44) E.L.T. 541 and the decision of the Larger Bench of this Tribunal in the case of National Engg. 2002 (139) E.L.T. 48 , condonation of delay is also not available in the case of ROM. 4. emsp It is not in dispute that the present application has been filed beyond the time-limit of six months prescribed under Section 35C(2). Time-limit is required to be counted from the date of the order in view of the decision of the Apex Court in the case of M.M. Foam. The ROM application is dismissed on the ground of limitation.
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2003 (8) TMI 447 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Production capacity based duty ... ... ... ... ..... selves to allow waiver of the pre-deposit of the duty amount especially when duty is admittedly payable by the appellants. The plea of the appellants that they have suffered losses cannot be accepted as a gospel truth at this stage. Moreover, Government dues have always got priority over the other liabilities of the assessee. It cannot be denied that the Government also needs money for implementation of the welfare schemes. It is for the appellants to arrange the money and clear Government dues. We do not find any prima facie case in favour of the appellants. Therefore, the appellants are directed to make pre-deposit of the entire duty amount of Rs. 25,22,620/- within eight weeks from today. On making this deposit, the pre-deposit of the penalty shall remain waived and recovery stayed during the pendency of the appeal. Failure to comply with this direction, shall result in dismissal of the appeal under Section 35F of the Act. To come up for reporting compliance on 14-10-2003.
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2003 (8) TMI 446 - CESTAT, NEW DELHI
Cenvat/Modvat ... ... ... ... ..... al goods and the appellants are not entitled to avail of credit. The learned Consultant submitted that as per the Stay Order Nos. S/258-259/2003, dated 23-4-2003-NB(S) the Appellants have deposited the duty amount under TR 6 that after depositing the amount they are entitled for the restoration of the credit amount which was reversed from RG 23A Part II. I also heard Shri S.C. Pushkarna, learned Departmental Representative. 3. emsp I have considered the submissions of both the sides. In view of the fact that duty has been discharged by the Appellants, by depositing the amount in Bank under TR 6 Challan, reversal of their Modvat credit in RG 23A Part II has to be restored as there cannot be two payments for the same clearances of the capital goods. I, therefore, order restoration of the Modvat credit which was utilised by them for paying the duty involved in the capital goods transferred from their one unit to another unit. Both the appeals are disposed of in the above manner.
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2003 (8) TMI 445 - CESTAT, NEW DELHI
Confiscation of currency ... ... ... ... ..... tion. He relied upon the decision of the Tribunal in the case of C.C., Lucknow v. M/s. Shakeel Ahmed (Final Order No. A/1195/02-NB(S), dated 6-9-2002. 2003 (154) E.L.T. 640 (Tribunal) . 5. emsp I have considered the submissions of both the sides. In view of the fact that bringing out Indian currency notes, above the denomination of Rs. 100/-, is barred by the Notification, the same is liable to be confiscated under the Customs Act. As admittedly the Indian currency notes of the denomination of more than Rs. 100/- were brought from Nepal to India, I uphold the confiscation. As Shri P.K. Dubey was bringing the Indian currency against the prohibition, a penalty of Rs. 2,500/-, imposed on him, is not unreasonable and the same is upheld. However, there is no material brought on record to show the complicity of Shri Ramji Singh in bringing the Indian currency of prohibited denomination. I, therefore, set aside the penalty imposed on him. The appeals are disposed of in above manner.
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2003 (8) TMI 444 - CESTAT, NEW DELHI
Adjudication - Natural justice ... ... ... ... ..... ed Commissioner. But, keeping in view the issue involved, the learned Commissioner should have allowed the cross-examination of the two Chemical Examiners whose reports were solely relied upon by him after ignoring the reports produced by the appellants. He has used the reports of the Chemical Examiners against the appellants without affording them proper opportunity of hearing or an opportunity of testing the correctness of the same through cross-examination. In our view, there had been thus violation of the principles of natural justice resulting in mis-carriage of justice. Therefore, without referring to any other point, on merits we set aside the impugned order on this short ground alone and send the matter back to the adjudicating authority for fresh decision, after affording an opportunity of cross-examination of the Chemical Examiners, referred to above, to the appellants, in accordance with law. The appeal of the appellants accordingly stands allowed by way of remand.
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2003 (8) TMI 443 - CESTAT, NEW DELHI
Cenvat/Modvat ... ... ... ... ..... to this contention of the learned JDR. The bare perusal of the impugned order shows that pressmud had been held to be a residual waste emerging during the process of manufacture of sugar by the respondents. In the above referred cases which have been relied upon by the learned Commissioner (Appeals), it has been consistently held that pressmud being a residual waste is not excisable. Those orders were appealed by the Department and the Apex Court also has confirmed the same in the case of CCE, Meerut v. Titawi Sugar Complex - 2003 (152) E.L.T. 21. Since pressmud is not an excisable item being residual waste, provisions of Rule 57CC will not be attracted. Therefore, the impugned order passed by the learned Commissioner (Appeals) by following the ratio of law in the above cases is perfectly valid and does not suffer from any infirmity on merits so as to call for any interference and as such were upheld. Consequently, the appeals of the Revenue are dismissed being without merit.
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2003 (8) TMI 442 - CESTAT, NEW DELHI
Refund - Limitation - Protest - Unjust enrichment ... ... ... ... ..... ered the refund claim from this angle as to whether incidence of duty has been passed on by the appellants to any other person. While remitting the matter back, the Supreme Court has observed that before refund can be claimed by the manufacturer or producer, ldquo the condition of Section 11B must be fulfilled viz., it must be shown that the amount of duty of excise in relation to which such refund is claimed was ldquo collected from or paid rdquo by the person claiming refund and that the incidence of such duty has not been passed on by him to any other person. rdquo Thus, the appellant have to satisfy the Department that the incidence of duty has not been passed on by him to any other person. As this aspect has not been considered by the lower authorities, we set aside the impugned Order and remand the matter to the Commissioner (Appeals) to decide the aspect of unjust enrichment after following the principles of natural justice. The appeal is thus allowed by way of remand.
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2003 (8) TMI 441 - CESTAT, NEW DELHI
Appeal - Limitation - Order ... ... ... ... ..... 001, no steps have taken by the authorities to recover the amount due as per order till 2003. 3. emsp As far as merits of the case are concerned, we find that the issue involved is directly covered in favour of the assessee by the decision of the Hon rsquo ble Supreme Court in the case of Escorts JCB Ltd. v. CCE reported in 2002 (146) E.L.T. 31 and in the case of Prabhat Zarda Factory Ltd. v. CCE reported in 2002 (146) E.L.T. 497. Since the Commissioner has relied on the decision of the Tribunal in the case of Escort JCB Ltd. 2000 (118) E.L.T. 650 (Tri.) and Prabhat Zarda Factory in order to come to a conclusion against the appellant and since those decisions are no longer good law in the light of the decision of the Hon rsquo ble Supreme Court, the order impugned cannot survive. We are, therefore, inclined to dispose of the appeals itself. 4. emsp The petition for dispensing with the condition for pre-deposit is allowed. We set aside the order impugned and allow the appeals.
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2003 (8) TMI 440 - CESTAT, NEW DELHI
Show Cause Notice - Service of - Natural justice - Violation of ... ... ... ... ..... the principles of natural justice. The traders on whom the penalties were imposed, specifically asked for relied upon documents which were not supplied to the applicants. This fact is not disputed by the Revenue. 5. emsp Further, we find that the show cause notice dated 3-7-2002 and the same affixed on the applicants premises on 4-7-2002 from whom the duty was demanded. It is admitted by the Revenue that factory premises were closed. No attempt was made by the Revenue to serve the notice to the manufacturer by post. In these circumstances, we agree with the applicants that the impugned order is passed in violation of the principles of natural justice. Therefore, after waiving the pre-deposit of duty and penalties in respect of the applicants and set aside the order, the matter is remanded to the adjudicating authority for deciding afresh after supplying the copies of relied upon documents and after affording an opportunity of hearing. Appeals are disposed of by way of remand.
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2003 (8) TMI 439 - SETTLEMENT COMMISSION, CUSTOMS & CENTRAL EXCISE, N
Settlement of case ... ... ... ... ..... st in accordance with the provisions of Section 28AB of the Customs Act and shall pay the same within 30 days of receipt of this order. The revenue shall re-check the correctness or otherwise of the calculation made and inform the Commission and the applicants. In case of any additional liability in relation to the calculation of interest is pointed out by the Revenue the applicants shall pay the same duty. (v) As the duty is being finally settled for Rs. 49,40,389/- as against the deposit of Rs. 51,01,438/- made by the applicant, the excess amount of Rs. 1,61,049/- shall be refunded by Revenue to the applicant within 30 days of the receipt of this order. 10. emsp Attention of all concerned is drawn to sub-section (10) of Section 127C and sub-section (2) and sub-section (3) of Section 127H of the Act. 11. emsp The settlement arrived at this order shall be void if it is subsequently found by the Commission that it has been obtained by fraud, or mis-representation of the facts.
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2003 (8) TMI 438 - CESTAT, MUMBAI
Appeal - Consent order ... ... ... ... ..... unt of Rs. 3,64,175.28 is concerned where the duty paying documents (gate passes/certificates in original) were not produced by M/s. Nelton India Ltd., since M/s. Nelton India Ltd. have shown willingness to forego the said Modvat credit, I do not consider it necessary to go into the question of time-bar. rdquo 4. emsp I do not find any justification as to how the appellant after forgoing the claim for the said amount has chosen to file the present appeal. In my view, the appeal is not maintainable and as such I dismiss the appeal being against the consent order.
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2003 (8) TMI 437 - CESTAT, NEW DELHI
EOU - DTA Sales - Exemption - Penalty - Imposition of ... ... ... ... ..... squo s Circular did not help the appellants in clearing the goods in DTA and as such, they are liable to pay the penalty also. 3. emsp We have gone through the record. We find that earlier there was a doubt about the liability of the 100 EOU to pay the duty on the DTA clearances and there was also Board rsquo s Circular earlier which created this doubt in the minds of the appellants. The appellants have already paid the entire duty and this is enough to indicate that they had no mala fide intention when they were denied the benefit of the Notifications in question referred to above, they deposited the amount. Keeping in view facts, circumstances and the conduct of the appellants, we find it a fit case to set aside the penalty. Therefore, the penalty imposed on the appellants under Rule 209 is set aside. Except for this modification in the penalty, the impugned order of the Commissioner (Appeals) on merits is upheld. The appeal of the appellants stands disposed of accordingly.
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2003 (8) TMI 436 - CESTAT, MUMBAI
Appeal - Restoration of ... ... ... ... ..... of order dated 2-1-2003. The order of 19-3-2003 was passed by the Tribunal dismissing the appeal for non-compliance. 2. emsp The learned D.R. opposes the prayer of the appellants for restoration of the appeal and pleads that the application for modification of stay order can be deemed to have been heard by the Tribunal before the order dated 19-3-2003, was passed. 3. emsp It appears that, the first order dated 2-1-2003 as well as subsequent order dated 19-3-2003 have been passed to ex parte. There is no discussion and finding on the merits of application for stay/modification. In the interest of justice, I feel that orders dated 2-1-2003 and 19-3-2002 are required to be recalled and the request for modification of stay order, deserves to be heard. 4. emsp Accordingly, orders dated 2-1-2003 and 19-3-2002 are re-called. The appeal is restored. The registry is directed to place the miscellaneous application for modification of the stay order for hearing on 26th September, 2003.
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2003 (8) TMI 435 - CESTAT, NEW DELHI
Clandestine removal - Cement - Empty bags unaccounted for ... ... ... ... ..... is beyond the period of demand which pertains to period from 27-4-94 to 16-1-96. A perusal of the Annexure to the show cause notice reveals that in the figure of 92,000 bags, the invoice No. 323, dated 19-10-96 for supply of 2,500 bags has not been taken into consideration. In Para 10 of the show cause notice, it is mentioned that under 10 invoices M/s. Surya Plastics (Pvt.) Limited had supplied 23,500 empty bags. However, only 21,000 bags had been mentioned in Annexure-A to the show cause notice and as such invoice dated 19-10-96 for 2,500 bags has not been taken into account for computing 92,000 bags. We uphold the demand of duty confirmed against them. The penalty is also imposable on the Appellants under Rule 173Q of the Central Excise Rules, 1944. The penalty of Rs. 5 lakhs, however, appears to be on the higher side and the interest of justice will be met if the penalty of Rs. 2.50 lakhs is imposed on them. We order accordingly. The appeal is disposed of in these terms.
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2003 (8) TMI 434 - CESTAT, NEW DELHI
Production capacity based duty - Annual capacity of production - Duty liability - Re-adjudication
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2003 (8) TMI 433 - CESTAT, NEW DELHI
Valuation - Transaction value - Rejection of ... ... ... ... ..... nd other countries. In the above circumstances, Revenue cannot take the stand that there would be another manufacturer rsquo s invoice which has to be produced by the appellant. 11. emsp A letter dated 18-12-2002 from M/s. Henry Yung Company Ltd. a copy of which is made available before us would show that they were also prepared to quote the price per machine as US 620. The learned counsel appearing on behalf of the appellant brought to our notice a Bill of Entry dated 14-8-2003 whereunder currency counting machine Model DHD-ID was imported from M/s. Jaewoo Corporation 600 US per unit. 12. emsp Taking into consideration the entire facts and circumstances of this case, we are of the view that there are no sufficient grounds in this case which would justify rejection of the transaction value declared by the appellant. In the result, we set aside the order impugned and allow the appeal. There will be a direction to release the bank guarantee submitted by the appellant forthwith.
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2003 (8) TMI 432 - CESTAT, NEW DELHI
Valuation - Free replacement warranty - Penalty - Imposition of ... ... ... ... ..... 944 which provides that penalty is imposable if any manufacturer removes any excisable goods in contravention of any of the provisions of Central Excise Rules. It is not in dispute that the Appellants have removed the free warranty replacement without payment of duty and without following the procedure prescribed under the Rules in spite of the fact that two decisions of the Commissioner have gone against them. It has been held by the Supreme Court in the case of Zunjarrao Bhikaji Nagarkar v. U.O.I. - 1999 (112) E.L.T. 772 (S.C.) ldquo that under Rule 173Q both things are necessary, (i) goods are liable to confiscation, and (ii) person concerned is liable to penalty. rdquo The Adjudicating Authority has imposed a penalty of Rs. 1 lakhs each in appeal No. E/1221 and 1222/2002 which we uphold. In appeal No. E/1223/2002 the penalty imposed under Rule 173Q is Rs. 5 lakhs which is on the higher side. We reduce the same to Rs. 1 lakh. All the appeals are disposed of in these terms.
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2003 (8) TMI 431 - CESTAT, BANGALORE
Ultra Seal Cascade Washing Machine exempt from customs duty under Notification No. 65/94-Cus.
............
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