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Case Laws
Showing 161 to 180 of 468 Records
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2003 (8) TMI 430 - CESTAT, CHENNAI
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... ... ..... e deposit of the interest, but he could not do so, in our view legally, in view of the above referred Apex Court judgment, wherein it has been observed that, ldquo there is no provision for relaxation or extension of time to deposit the amount of interest under such scheme. Such schemes or exemption notifications have to be strictly construed rdquo . Therefore the impugned order of the Commissioner of Customs absolving the respondents from their liability to pay customs duty on the ground that they had paid the interest and reversed the Modvat credit, cannot be legally sustained. The respondents, as observed above, are liable to pay the customs, duty as detailed in the show cause notice. Therefore the impugned order of the Commissioner of Customs is set aside and the customs duty detailed in the show cause notice is confirmed against the respondents. They are also liable to pay the interest, if any, in accordance with law. The appeal of the Revenue accordingly stands allowed.
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2003 (8) TMI 429 - CESTAT, KOLKATA
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... ... ..... SDR appearing for the respondents reiterates the grounds of the authorities. 5. emsp After considering the submissions made by both the sides and after going through the relevant records, I find a lot of force in the appellants rsquo arguments. Annexure to the show cause notice itself shows the quantity of the waste and scrap cleared from the appellants rsquo factory and receipt of the semi-manufactured goods in their factory. In the circumstances, it was not open to the Revenue to deny the correctness of the records or to observe that the appellants have not been able to substantiate their stand of having sent waste and scrap to their job workers and having received the goods back from them. There is no dispute about the legal position which has been settled in favour of the appellants by the Larger Bench of the Tribunal. In the circumstances, 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 (8) TMI 428 - CESTAT, KOLKATA
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... ... ..... 1-11-2002 wherein he allowed the appeals filed by the appellants. However, in respect of third appeal, he passed a separate order dated 9-1-03/10-2-03 vide which he rejected the appeals. The appellants rsquo grievance is that the issue involved in all the three appeals which were heard by the Commissioner is the same, but the appellate authority has passed two different orders. Shri A.K. Mondal, ld. SDR accepts the above position but is unable to offer any explanation for the same. He, however, submits that the present order dismissing the appeal is correct order than the earlier order vide which the appeals were allowed. However, Shri Mondal fairly agrees that the earlier orders passed by the Commissioner (Appeals) have not been appealed against by the Revenue. 3. emsp In view of the foregoing, I set aside the impugned order and remand the matter to the Commissioner (Appeals) for passing fresh orders in the light of his earlier order. Appeal is thus allowed by way of remand.
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2003 (8) TMI 427 - CESTAT, NEW DELHI
Clandestine removal - Proof - Evidence - Documents - Confiscation and penalty - Imposition of
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2003 (8) TMI 426 - CESTAT, KOLKATA
Appeal to Appellate Tribunal - Miscellaneous application ... ... ... ... ..... discussion on the penalty imposed under Rule 173Q, upheld by Commissioner (Appeals). It is, therefore, humbly prayed before Hon rsquo ble CEGAT (EZB), Kolkata. (1) To pass fresh order, on the points regarding penalty imposed under Rule 173Q and to confirm the O/A passed by the Commissioner (A), C.Ex., Kol-II (or) (2) To pass any order as deemed fit. rdquo 4. emsp I have already reproduced the relevant para of C.E.G.A.T. rsquo s Order where there is no reference to any rule either 173Q or 209A. As such, to contend that penalty referred to in Tribunal rsquo s Order and set aside by it refers to penalty imposed under Rule 209A shows non-application of mind on the part of the Commissioner or his poor understanding of the Tribunal rsquo s decision. I hold that before filing such type of infructuous applications, the Commissioner rsquo s Office would properly apply their mind and understand the Orders passed by the Tribunal. The Miscellaneous Application is disposed of accordingly.
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2003 (8) TMI 425 - CESTAT, KOLKATA
Adjudication - Natural justice ... ... ... ... ..... d have been allegedly prepared by the appellants themselves. The appellants rsquo grievance is that the said statement was never supplied to them at any point of time so as to meet the allegations of the same being fabricated documents. 3. emsp I have seen the show cause notice. There is no mention of such statement in the notice. The same have been dealt with by the original adjudicating authority for the first time in his impugned order. The appellant had taken the above point before the appellate authority but he has not dealt with the same. Accordingly, I set aside the impugned order, remand the matter to the original adjudicating authorities with directions to them to supply the copy of the statement of Shri Agarwal to the appellants and then re-adjudicate the matter. Needless to say that before the decision the appellants would be given an opportunity of hearing in accordance with the principles of natural justice. All the four appeals are thus allowed by way of remand.
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2003 (8) TMI 424 - CESTAT, NEW DELHI
Dutiability - Goods lost in handling ... ... ... ... ..... lost in handling oil at the port. The Appellants have also not brought on record any correspondence exchanged by them with the port authorities about the loss of such a huge quantity in handling. The decision in the case of National Organic Chemicals is not applicable to the facts of the present matter as the difference in quantity was noticed between notional quantity and the quantity received. In the present matter the quantity mentioned in the Bill of Entry is not notional one. Rule 8 of the Customs Rule, 1996 clearly provides that in case the goods imported are not used for the intended purpose the Asstt. Commissioner has to take action to recover the amount equal to the difference between duty leviable on such goods but for the exemption and that already paid at the time of importation. As the quantity received short has not been used for intended purpose the demand of duty has been rightly made under Rule 8 of the Customs Rule, 1996. The appeal is accordingly rejected.
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2003 (8) TMI 423 - CESTAT, MUMBAI
Valuation - Transaction value - Rejection of - Confiscation of goods - Import ... ... ... ... ..... rt rsquo under Section 2(e) of the FTDR Act, 1992 and the definition of the word lsquo import rsquo as given in Section 2(23) of the Customs Act, 1962 and the Supreme Court decision in the case of Garden Silk Mills 1999 (113) E.L.T. 358 (S.C.) and the fact that the contracts in this case were registered before the goods reached customs stations, Pimpri, the port of import and before filing of the Bills of Entry, we do not find any violation of the provisions of the DGFT Public Notice para 4(c) to call for a confiscation and thereafter heavy penalties under Section 111(d) of the Customs Act, 1962 as arrived at by the Commissioner. (d) emsp Since the liability for confiscation under Section 111(d) and 111(m) is not being upheld in the facts of this case, there is no case and/or cause for invoking the penal clause under Section 112(a). The confiscation and redemption fines and penalties cannot be upheld. 7. emsp In view of our findings, the order is set aside and appeal allowed.
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2003 (8) TMI 422 - CESTAT, NEW DELHI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... urpose at the material time. Under sub-rule (3) of Rule 57G read with Rule 52A, only duplicate copy of invoice issued by the input-manufacturer could be used for the purpose. Sub-rule (6) of Rule 57G permitted the use of original copy of invoice for the purpose where the duplicate copy was lost in transit and such loss was proved to the satisfaction of the jurisdictional Assistant Commissioner of Central Excise. Rule 57G did not at all contemplate the use of triplicate copy of invoice, let alone photocopy thereof, for the purpose of availment of Modvat credit. A Larger Bench of this Tribunal, in the case of Avis Electronics (supra) held that, where the rule prescribed a specific procedure for taking Modvat credit, such procedure should be strictly followed. In the light of this decision of the Larger Bench, the decisions cited by the company rsquo s representative cannot be followed. In the result, the impugned order requires to be upheld and I do so. The appeal is dismissed.
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2003 (8) TMI 421 - CESTAT, CHENNAI
Cenvat/Modvat - Modvat on capital goods ... ... ... ... ..... by their description therein and also clarified that clause (d) covers goods by their description as components, spares and accessories for the said capital goods and not merely by classification. Taking into overall facts and circumstances of the case, I am of the considered opinion that the benefit is required to be extended to be remanded for reconsideration in the light of the above Rule 57Q that the items in the classification are components, spares and accessories of the goods specified under Sl. No. 4 of the Table annexed. For this reason, the matter is remanded back to the original authority to re-examine the issue in the light of the Board rsquo s circular and the Apex Court judgment cited before me. The observation made in this order should also be taken into consideration. The appeal is allowed by remand to the original authority. The appellants shall be afforded full opportunity to contest the case and also be permitted to adduce evidence to establish their case.
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2003 (8) TMI 420 - CESTAT, BANGALORE
Remand - Order-in-appeal giving conflicting findings ... ... ... ... ..... fficient evidence has not been placed before the authorities below to substantiate the claim of the party that 191 tonnes relate to trading activity and accordingly, the authorities were justified in not accepting the claim of the party. 4. emsp We have carefully considered the matter. As can be seen from the records, particularly the impugned order, we find that observations made by the Commissioner (Appeals) at Page 5 is in conflict with the view taken by the very authority at Page 6. In view of the conflicting findings, with reference to the facts, we are of the view that the matter will have to go back for re-consideration. In the view we have taken, the matter is remanded to the adjudicating authority to examine the issue afresh and pass an order in accordance with law on providing an opportunity to the party. The appellants may make use of the opportunity and substantiate their claims during the re-adjudication proceedings. Thus, this appeal is allowed by way of remand.
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2003 (8) TMI 419 - CESTAT, CHENNAI
Modvat/Cenvat - Utilisation of credit ... ... ... ... ..... g out the premises stood lapsed. Therefore, the question of allowing such person to make debit entries in the records or to revive the closed accounts does not arise. The case law cited by the learned Counsel for the assessee does not come to their rescue as the law laid down is distinguishable from the facts of the case. In that case there was no surrender of RC involved and the question was utilisation of credit earned after coming into force of Rule 57F(17)(b). In view of our discussion above, the impugned order stands modified to the extent indicated above in so far as it relates to utilisation of the credit of Rs. 1,52,074.66 is concerned. The rest of his order relating to the quantum of the lapsed credit which cannot be utilised also stands modified. Accordingly, we restore the order of the original authority and dismiss the appeal filed by the assessee. The appeal filed by the Revenue is allowed. The cross-objection filed by the assessee stands disposed of accordingly.
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2003 (8) TMI 418 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Modvat ... ... ... ... ..... osition of penalty had come up before the Tribunal which vide order Nos. C-I/56-57/WZB/2001, dated 8-1-2001 held that M/s. Mutual Mecaplast Ltd. acted in the bona fide belief that the cost of the moulds was not includible in the value of the components. The question before us is as to whether the short-levy is on account of suppression or fraud on the part of the Mutual Mecaplast Ltd. We, therefore, see, prima facie, force in the submission of the applicants that the acceptance by the Tribunal rsquo s in its earlier order that M/s. Mutual Mecaplast Ltd. acted bona fide in the belief that the cost of the moulds was not required to be included in the value of the components would prima facie not co-exist with the allegation or finding of suppression/fraud on the part of Mutual Mecaplast Ltd. We, therefore, held that the applicants have made out a strong prima facie case for waiver and accordingly waive the requirement of pre-deposit and stay recovery thereof pending the appeal.
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2003 (8) TMI 417 - CESTAT, NEW DELHI
Penalty - Modvat ... ... ... ... ..... dents is that the statement dated 21-9-2000 of Shri Pushkar Raj (proprietor), is an afterthought. The fact remains that it was only 21-9-2000 that the respondents were summoned by the Department. On that very day, Shri Pushkar Raj stated that they had sold the goods under cover of invoice to M/s. Sandeep. This statement has not been rebutted by anyone. In the circumstances, a penalty on the respondents under Rule 173Q is unwarranted. The fact that M/s. Sandeep wrongly availed Modvat credit on the strength of the invoice issued by the respondents is not a valid ground for imposing penalty on the latter. If a party took Modvat credit illegally or irregularly, a penalty could be imposed on that party on the basis of that fact. That fact, however, cannot be the sole basis for imposing a similar penalty on another party who issued the invoice. Therefore, the penalty on the respondents was rightly vacated by the Commissioner (Appeals). The present appeal of the Revenue is rejected.
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2003 (8) TMI 416 - CESTAT, NEW DELHI
Production capacity based duty - Stenter ... ... ... ... ..... mber in order to achieve multiple passes. If there are more than one stenter chain in the chamber and due to that reason there would be additional movement of the fabric resulting in more drying of the fabric, the number of chamber is not liable to be multiplied by the number of stenter chains installed in terms of clause (i) of sub-rule (3) of Rule 3 of the Rules. If that be so, there is no reason to take a different view, where provision is made for movement of fabric below the stenter chain resulting in enhancement of drying process. Apart from the above as mentioned earlier any additional facility for drying would certainly be reflected in the total quantity of production which in turn will enhance the Annual Capacity of Production as computed under the Rules. 7. emsp In the light of the above discussions, we hold that the order impugned is not sustainable. We, therefore, set aside the order and allow the appeal. The assessee will be entitled to all consequential reliefs.
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2003 (8) TMI 415 - CESTAT, MUMBAI
Modvat/Cenvat - Inputs ... ... ... ... ..... aints from their earlier declaration and as such, denial of credit is justified on the basis of the appellant rsquo s own declaration. However, he has no explanation as to why the appellants were allowed credit on paints for the period October, 1989 to June, 1991 and only the credit for the period from 12-6-1991 to 12-7-1991 was disallowed. 3. emsp After hearing both sides and perusal of case records, I find that there is no justification for disallowing the Modvat credit in respect of inputs viz. paints only for a period of one month when such credit was allowed for earlier and later periods. As such, the impugned order is set aside with consequential relief to the appellants. 4. emsp Appeal allowed.
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2003 (8) TMI 414 - CESTAT, MUMBAI
Rectification of mistake - Error apparent on face of records ... ... ... ... ..... Chief Chemist rsquo s report which although obtained after the issue of the show cause notice was furnished to the assessee, as seen from the fact that in one of the orders it is clearly stated that their request for abstract of the report of the Chief Chemist was given to them, and in the second case the goods were re-tested at the request of the appellants themselves and the Chief Chemist rsquo s report was available with the appellant. On reading the reports of the Chief Chemist, it is clear that the issue stands decided against the assessee and no material has been put forth from the assessee that the goods are phenolic formaldehyde resins. 4. emsp In these circumstances, the finding that the goods are not phenolic formaldehyde resins requires to be accepted. Accordingly, while allowing the application for rectification of mistake, we hold that there is no ground to interfere with the orders of the authorities below and accordingly uphold the same and reject the appeals.
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2003 (8) TMI 413 - CESTAT, NEW DELHI
Rectification of mistake ... ... ... ... ..... the Tribunal and produced by the counsel, shows that on account of breach in the export obligations for having not maintained the minimum value addition/NFEP of 35.60 , the respondents/appellants were issued show cause notice, on the review of the performance made by them. After getting their reply, the Development Commissioner had dropped the proceedings against them through this order by holding that there was no short fall in NFEP and there was no sectoral norms and that the unit had been foreign exchange earner during the period. In the face of this order, we doubt if the Department will be legally competent to re-initiate the duty recovery proceedings against the respondents/appellants. 5. emsp In view of the above discussion, we do not find any mistake of fact or law appearing on the face of the impugned final order of the Tribunal so as to call for any rectification. Therefore, the ROM application filed by the Revenue is ordered to be dismissed being without any merit.
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2003 (8) TMI 412 - HIGH COURT OF DELHI
Power to call for information or explanation ... ... ... ... ..... the identity card issued by the employer. How the Magistrate could refuse to accept such a surety? Insistence of bringing documents relating to car was, therefore, not valid. 21. In view of the provisions contained in the Cr.P.C. nature of the offence, the Court is expected to decide the application. In the instant case as the summons was issued to the accused to appear in person or through a pleader and despite the fact that the pleader was not present, the Court has not taken any coercive process against the accused, the petitioner herein. But under mistaken belief, the Advocate submitted an application that warrant has been issued and that is how the matter proceeded further. Therefore, it appears that the Magistrate be asked to examine the matter carefully and to pass an order on the application that may be submitted by the accused on 15-9-2003, the date which is now fixed before the Magistrate. 22. With these observations, the petition and applications stand disposed of.
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2003 (8) TMI 411 - HIGH COURT OF PUNJAB AND HARYANA
Enforcement of Security Interest ... ... ... ... ..... recourse to any other alternatives provided under Clause 13(4) of the Ordinance. 12. In the facts and circumstances afore-noticed, we consider it appropriate to direct that all the petitioners shall be entitled to the same interim order as has been granted by the Hon rsquo ble Apex Court. We further make it clear that the despite pendency of these petitions, it will be appropriate for the concerned authorities in the Union of India as well as the Reserve Bank of India and the Financial Institutions to ponder over the matter and, formulate proper guidelines and also determine the policies in regard to exercise of powers vested in the secured creditors and its empowered officers. 13. Thus, we direct all these petitions to be adjourned sine die with liberty to revive after the pronouncement of the judgment of the Hon rsquo ble Supreme Court. In the meanwhile the interim order in terms of the order of Hon rsquo ble Supreme Court shall continue till disposal of the writ petitions.
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