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Case Laws
Showing 141 to 160 of 520 Records
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2004 (5) TMI 484 - CESTAT, NEW DELHI
Confiscation of goods - Excess Stock ... ... ... ... ..... of the entries made in the panchnama. Therefore, the goods were rightly found to be excess to the recorded balance. 5. emsp In this case, on verification it was found that M.S. ingots as well as runners and risers were found in excess to the recorded balance. The perusal of the stock verification report shows that weighment was recorded on approximate basis. No actual weighment was conducted to arrive at the actual excess. It is also admitted fact that runners and risers were of different shapes and sizes. Therefore, the excess calculated on approximate basis cannot be made ground for confiscation of the goods. The Tribunal in the case relied upon by the appellants held that shortage and excess of weight determined on average basis cannot be made basis for demand of duty and for confiscation. 6. emsp In view of the above discussions, the impugned order is set aside and the appeal is allowed. The appellants are entitled for consequential relief, if any, in accordance with law.
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2004 (5) TMI 483 - CESTAT, NEW DELHI
Refund - Unjust enrichment ... ... ... ... ..... 97 P at the rate of 78 ad valorem instead of at 16 chargeable thereon. They thus paid excise duty of Rs. 14,383/-. Similarly, they paid excise duty of Rs. 29,000/- while returning the inputs received from the manufacturer M/s. Refrigeration RPHYR under invoices dated 29-1-2001 as they paid duty at the rate of 96 instead of 16 chargeable thereon. It is a case where according to the appellants themselves, they have paid the excess duty wrongly while returning the rejected goods to the suppliers. Therefore, the provisions of Section 12B are attracted to the case of the appellants. They were required to prove that the incidence of duty has not been passed on by them to the buyers. For having failed to do so, the refund amount claimed by them in all of Rs. 43,383/- had been rightly credited to the Consumer Welfare Fund by invoking the doctrine of unjust enrichment. I do not find any illegality in the impugned order and the same is upheld. The appeal of the appellants is dismissed.
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2004 (5) TMI 482 - CESTAT, NEW DELHI
Cenvat/Modvat - Inputs ... ... ... ... ..... , but the learned Commissioner (Appeals) has failed to do so. The learned Counsel has also stated that even the duty liability of the input supplier had been set aside by the Tribunal and the matter may be sent back to the Commissioner (Appeals) for fresh decision in respect of those invoices which contained the declaration duty to be discharged. 5. emsp The learned Commissioner (Appeals) has not even dealt with the matter in detail keeping in view the law on the points involved. Therefore, in my view, the case deserves to be sent to the adjudicating authority for fresh decision after allowing the appellants to adduce evidence, if any, to substantiate their claim for deemed Modvat credit. In view of the above discussion made above, the impugned order is set aside and the matter sent back to the adjudicating authority for fresh decision in the light of the observations made above, after hearing the appellants. The appeals of the appellants stand disposed of in the above terms.
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2004 (5) TMI 481 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Cenvat/Modvat on inputs ... ... ... ... ..... ted goods. In other words, except for inputs intended to be used as fuel, Cenvat credit is not available under Rule 6(2) on inputs meant for use in the manufacture of exempted goods. However, we find after hearing both sides that, prima facie the provisions of Rule 6(1) which provides that Cenvat credit shall not be allowed on such quantity of input which is used in the manufacture of exempted goods, is attracted to the facts of the present case and, therefore, no strong prima facie case for total waiver of pre-deposit has been made out. In the facts and the circumstances of the case, we direct pre-deposit of Rs. 5 lakhs towards duty, within a period of 8 weeks from today. On such deposit, the pre-deposit of balance amount of duty and penalty shall stand dispensed with and recovery thereof stayed pending the appeal. Failure to comply with this direction shall result in vacation of stay and dismissal of appeal without prior notice. Compliance to be reported on 13th July, 2004.
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2004 (5) TMI 480 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Demand ... ... ... ... ..... ey are liable to penalty. We do not find my prima facie merits in the above reasoning of the learned adjudicating authority. It is on record that the appellants were clearing the goods in question after making proper declaration to the Revenue. If the Department felt that the classification adopted by the appellants was not correct, they were at liberty to initiate the proceedings against them for proper classification of the product. In the absence of any suppression or mis-statement on the part of the appellants, penalty, prima facie, was not warranted. Accordingly we dispense with the condition of pre-deposit of personal penalties imposed on all the applicants and stay recovery of the same during the pendency of the appeals. The stay petitions are disposed of. 3. emsp At this stage learned Chartered Accountant makes a prayer for early hearing of the appeal inasmuch as the issue being of classification has recurring effect. Accordingly we fix the appeals on 26th July, 2004.
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2004 (5) TMI 479 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Modification of stay order ... ... ... ... ..... excise duty under Notification No. 125/84-C.E., dated 26-5-1984, unless the same are sold in India rdquo . This clarification immediately paves the way for a prima facie view that, if the goods manufactured by a 100 EOU are sold in India, the benefit of the notification would not be available. Admittedly, the goods in question were sold in DTA. 4. emsp Nevertheless, we have examined the plea of financial hardships with a compassionate mind and are inclined to reduce the quantum of duty for pre-deposit on this sole basis. The quantum will stand reduced to Rs. 25 lakhs and Stay Order No. 257/2003, dated 27-8-2003 shall stand modified accordingly. 5. emsp The party has already paid an amount of Rs. 5 lakhs. They shall deposit the balance amount of Rs. 20 (Twenty) lakhs within 30 days from today and report compliance on 8-7-2004. 6. emsp As we had earlier ordered out-of-turn posting of the appeal for hearing, the present application for early hearing is dismissed as infructuous.
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2004 (5) TMI 478 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... loss of the duplicate copy of the invoice. They had also taken credit of Rs. 2,504/- before the installation of the capital goods and this aspect of the matter has not been disputed. Therefore, keeping in view the facts and circumstances of the case and the issue involved, the appellants are directed to make pre-deposit of Rs. 20.000/ - within six weeks from today. On making this deposit, the pre-deposit of the balance duty and entire penalty shall stand waived and its recovery stayed during the pendency of the appeal. In case of failure to comply with the terms of the stay order, their appeal shall become liable to be dismissed under Section 35F of the Act. Compliance to be reported on 20-7-2004.
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2004 (5) TMI 477 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Cenvat/Modvat - Duty paying documents ... ... ... ... ..... he Commissioner. 3. emsp On a specific query from the Bench whether the applicant had taken credit on the strength of triplicate copy of Bill of Entry, the ld. Counsel submitted that they were not having in their possession the triplicate copy of Bill of Entry. The photocopy produced by the applicant does not show whether while submitting RT-12 returns at the time of taking credit this copy was defaced by the Revenue authorities. In these circumstances, prima facie it is not a fit case for total waiver of duty. The applicants are directed to deposit a sum of Rs. 15,000/- within a period of three weeks. On deposit of the above-mentioned amount the remaining amount of duty and penalty is waived. Adjourned to 13th July 2004 for compliance.
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2004 (5) TMI 476 - CESTAT, NEW DELHI
... ...
... ... ..... lthough is admissible piece of evidence, but cannot be enough in its individual characteristics to record a conviction. Consequently, extending the benefit of doubt in the case of Pipal Singh appellant, we acquit him of the charge framed against him under Section 23 of the Act rdquo . 7. emsp The contention of the applicant is also that the statement was recorded under duress, the appellant under the custody of Customs authority. This fact was noticed by the Hon rsquo ble High Court and the Hon rsquo ble High Court held that as the present appellant was in custody of Customs authority, the possibility of duress or coercion at the hands of the Customs officials cannot be ruled out. Beyond this, the prosecution has no evidence worth the name to link the present appellant with the alleged recovery of contraband. In view of these observations of the Hon rsquo ble High Court, I find force in the arguments of the appellant. The impugned order is set aside and the appeal is allowed.
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2004 (5) TMI 475 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... der Section 35F of the Central Excise Act is not a coercive measure. He finally mentioned that the decision in Associated Cement Co. Ltd. has been pronounced on the basis of old Rule 57B without bringing Section 112 of the Finance Act, 2000 to the notice of the Hon rsquo ble Supreme Court. 4. emsp We have considered the submissions of both the sides. We, prima facie, agree with the submissions made by the learned D.R. Accordingly both the applicants have not made out a prima facie case for waiver of pre-deposit of the entire amount demanded from them. We, therefore, direct both the applicants to deposit the following amounts within 8 weeks from today (1) M/s. Flex Industries Ltd. Rs. 4 lakhs (2) FCL Tech. and Products Ltd. Rs. 8 lakhs On complying with this direction there shall be waiver of pre-deposit of the remaining amount and the recovery of the same will remain stayed during the pendency of the appeals. Both the matters will come up for reporting compliance on 2-8-2004.
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2004 (5) TMI 474 - CESTAT, MUMBAI
Valuation - Notional interest on advances - Demand - Limitation ... ... ... ... ..... E., Mumbai v. ISPL Industries Ltd. - 2003 (154) E.L.T. 3 (S.C.) which notes earlier decision of VST Industries - 1998 (97) E.L.T. 395 (S.C.) holding that notional interest can be included in the assessable value when the price is influenced by the fact of interest free advances and the material on record in the form of admission by the appellants that the price is influenced by such fact, we hold that the authorities below have rightly included the notional interest on advances in the assessable value of catalysts so as to arrive at the duty liability. On the aspect of limitation also we find that the appellants do not have a case as the price declarations filed along with copies of contracts did not disclose that the receipt of interest on advances was kept in view while negotiating and fixing the price charged to the buyers/customers of catalysts. In the result the appeal fails both on merits and on limitation. Accordingly we uphold the impugned order and reject the appeal.
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2004 (5) TMI 473 - CESTAT, BANGALORE
Appeal to Appellate Tribunal - Limitation - Delay of 50 days in filing - Condonation of ... ... ... ... ..... e affairs of the company. It is seen from the records that the Appeal Memo has been signed by Shri S. Vijaykumar, General Manager (Commercial) and not Shri W. R. Gopi, Assistant Manager. There is no affidavit from Shri S. Vijaykumar, General Manager (Comm.) to justify the delay in filing the appeal. It clearly shows that Shri W.R. Gopi is not an authorised signatory to file the appeal and hence, the appeal has been filed by Shri S. Vijaykumar, General Manager (Comm.). Even the reasons given by Shri W.R. Gopi in the affidavit is flimsy. Further, he was not authorised to file the appeal but it was Shri S. Vijaykumar, General Manager (Comm.) who was responsible for the affairs of the company as is evident from the various records. The judgment rendered by the Apex Court in case of Union of India v. Tata Yodogawa Ltd. (supra) clearly applies the facts of the case. There is no merit in the application and hence, the same is rejected. In the consequent, the appeal is also rejected.
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2004 (5) TMI 472 - CESTAT, NEW DELHI
Cenvat/Modvat - Capital goods ... ... ... ... ..... contention of the Revenue is that parts of E.O.T. crane are specifically excluded from the definition of capital goods and Board rsquo s circular is issued in 1996, whereas Rule 57Q was amended on 1-3-1997 which provides exclusion clause. 5. emsp In this case, the benefit of credit on parts of E.O.T. crane was denied due to exclusion clause. Rule 57Q also provides that parts of the capital goods specified against Serial Nos. 1 to 4 are entitled for the credit. The Revenue is not disputing the fact that the goods in question are parts of E.O.T. crane. The Board has issued circular dated 2-12-96 and clarified the position that all parts, components and accessories which are used with capital goods and classifiable under any chapter heading are eligible for Modvat credit. This circular was not withdrawn by the Board. Therefore, this is also applicable to the period in dispute. In view of the above Board rsquo s circular, the impugned order is set aside and the appeal is allowed.
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2004 (5) TMI 471 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Demand - Limitation ... ... ... ... ..... 4. emsp In the result, the appellants have established a strong prima facie case warranting full waiver of pre-deposit and stay of recovery in respect of the penalty as well as the duty computed on the differential value of the goods. As far as the demand of duty based on denial of SSI exemption is concerned, ld. Counsel, fairly, has not pressed the challenge. He has, however, hastened to add that the amount of about Rs. 1.75 lacs has already been paid by the party against the demand of Rs. 1.60 lakhs. This factual claim is not contested. Therefore, insofar as the demand of duty based on denial of SSI exemption is concerned, the question of waiver of pre-deposit and stay of recovery does not arise, in view of the payment already made. 5. emsp Waiver of pre-deposit and stay of recovery are, therefore, allowed as prayed for. Since we have already disposed of the stay application, the other application seeking early hearing of the stay application is infructuous and is rejected.
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2004 (5) TMI 470 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... lared aluminium in unwrought form falling under Chapter 76 of the Central Excise Tariff and this also covers waste and scrap of aluminium. 5. emsp Now Rules 57G and 57E of the Central Excise Rules is amended to the effect that the credit shall not be denied if all the particulars are not given in the declaration. In these circumstances, the applicants have a strong prima facie case in their favour. Therefore, the pre-deposit of duty and penalty is waived. Adjourned to 7-7-2004 for arguments.
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2004 (5) TMI 469 - CESTAT, NEW DELHI
Classification ... ... ... ... ..... tinguished the decision in the case of Simplex Mills Co. by observing that the Tribunal while passing that order lost sight of Note 7 to Chapter 59. The Larger Bench of the Tribunal has held that ldquo had the sub-heading 5909.00 been examined in the light of Note 7 to Chapter 59, the conclusion would have been entirely different. When the Chapter Heading 59.11 is examined in the light of Note 7 to Chapter 59 as has been done in the earlier paragraph, we are clear in our mind that the conclusion reached by the Bench in 1993 (49) ECR 147 is unsustainable. We accordingly hold that the said decision can never be treated as one laying down correct law. rdquo We observe that the Commissioner (Appeals) in the present appeals has classified the product under Chapter 52 following the ratio of Larger Bench decision. Accordingly, no interference is called for in the impugned order. Both the appeals filed by Revenue are rejected. Cross-objections are also disposed of in the same manner.
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2004 (5) TMI 468 - CESTAT, MUMBAI
Ammonia, liquid and solid ... ... ... ... ..... e that 14HH is a latter entry in the tariff. When there are rival entries the principle is to classify the goods in the entry which comes latter. Insofar as the argument that ammonia is specifically mentioned in the entry under 14H we observe that fertiliser is an equally specific entry in so far as ammonia is concerned. In the present case it is not disputed that the product is used as fertiliser. This position is understood by both the parties. We also observe that the entry under 14HH does not exclude any goods elsewhere specified. So long as it is not disputed that ammonia is a fertiliser and in this case specifically used as fertiliser the benefit of exemption cannot be denied to the product. The notification exempting the fertilisers from payment of duty does not exclude ammonia when used as fertiliser. For the above reasons, we hold that ammonia is classifiable under Tariff Item 14HH of the erstwhile Central Excise Tariff. 6. emsp The appeal of the revenue is rejected.
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2004 (5) TMI 467 - CESTAT, KOLKATA
Stay/Dispensation of pre-deposit ... ... ... ... ..... s no demand is sustainable. The learned JDR was asked whether any show cause notice was issued to modify the classification list. He submits that no show cause notice has been issued to modify classification list. In this case the Assistant Commissioner while adjudicating the show cause notice has brought the demand as the appeal has been set aside by the Commissioner (Appeals). After considering the case we feel that the appellant has a prima facie case and in view of that we dispense with the duty and penalty till further orders. Case to come up for regular hearing on 17th of June, 2004.
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2004 (5) TMI 466 - CESTAT, BANGALORE
Stay application during pending of reference application ... ... ... ... ..... a reference application before the High Court of Andhra Pradesh on the same question is involved in the appeal. Therefore they pray for granting stay of the operation of the impugned order. 4. emsp The learned Counsel appearing for the Respondents submits that the Commissioner (Appeals) has followed the ratio of the Larger Bench judgment and hence it is not a fit case for granting stay, as the impugned order has been properly passed. 5. emsp On a careful consideration of the submissions made by both the sides, we notice that the Commissioner has not made out grounds for granting stay of the order except a ground that a substantial question of law is involved. The department prays for granting stay on the ground that their reference application is pending before the High Court. It is not a ground for granting stay of the operation of the impugned order. There is no merit in the stay application and therefore, the same is rejected. The appeal to come up for hearing in its turn.
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2004 (5) TMI 465 - CESTAT, MUMBAI
Confiscation and penalty ... ... ... ... ..... ion or similar events specified in Schedule 1 of notification of the Government of India in the Ministry of Finance No. 157/90-Customs, dated 28-3-1990 against ATA Carnet under the customs convention of the ATA Carnets for temporary admission of goods done as Brussels on 30th July, 1963. rdquo The impugned goods are covered under carnet as admitted by the department. They are mentioned in Schedule 1 of Notification 157/90. The fact that the benefit of notification is not given to the goods for want of certificate does not exclude the goods from the exemption mentioned above from licensing formalities. The goods in question satisfy all the requirements of Rule 3(P) as mentioned above. No licence is required for the importation. The Commissioner erred in holding that the goods require an import licence. He ought not have confiscated them and imposed a penalty as the good are covered by a valid carnet. 6. emsp The order of the Commissioner is set aside and the appeal is allowed.
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