Appeal - Limitation - Delay in filing - Condonation of
... ... ... ... ..... lant to deposit a sum of Rs. 50/- by TR-6 Challan so that a copy of the Order-in-Original could be issued to them. On 7-1-2003 the appellant sent a photocopy of Challan of Rs. 50/- which he had already sent with his letter, dated 14-11-2002. Thereafter a certified copy of the Order-in-Original was received by the appellant rsquo s Counsel on 17-1-2003. 3. If the order had been sent in time, we fail to understand, why the Commissioner could not have intimated the appellant or his Counsel when letter dated 12-9-2002 was received by the Commissioner as mentioned earlier. It took another 3 months for the department to respond to the request made by the appellant rsquo s Counsel. 4. emsp Under these circumstances we are inclined to accept the contention taken by the appellant that it had not received the Order-in-Original in time. If that be so, there is no delay in filing the appeal. The COD is disposed of as above. Appeal alongwith stay to come up for hearing on 16th June, 2004.
Stay of suspension order - Suspension of Customs House Agent licence
... ... ... ... ..... l consideration of the submissions made by the both sides and on perusal of the judgment of the Larger Bench in case of Freightwings and Travels Ltd. (supra), we notice that in terms of this judgment, there has to be immediate circumstance available for suspending the licence in terms of Regulation 21(2). In the absence of any immediate cause and especially when there is an inordinate delay in issue of suspension order, the CHA licence cannot be suspended without issue of show cause notice. The appellants have made out strong ground for granting of stay of the operation of the order of suspension. Accordingly the stay application is allowed by staying the operation of the Order No. S34/6/2004-I and B-Cus., dated 24th Mar., 2004 suspending the CHA licence. The prayer of the appellants for an early hearing is accepted. The matter to come for final hearing on 4 June 2004. As the Counsel seeks copy of this order, the registry is directed to issue copy of this order expeditiously.
... ... ... ... ..... ed under Rule 41 of the CESTAT Procedure Rules, 1982. 2. emsp Shri N.K. Mishra, learned JDR appearing for the Revenue has submitted that under Rule 41, the appeals cannot be restored, once it has been dismissed. He submits that under Rule 20 of the CEGAT (Procedure) Rules, 1982, the proviso seeks the power for restoration of appeals, and in this case, the same is not applicable. He further submits that the appeals were decided by the Tribunal on 31-10-2002. The applicants on their own admission have received the Order-in-Appeal on 1-8-2003 and they have filed the Restoration Applications on 9-3-2004. Thus the case is also hit by laches. In view of the above, we dismiss the Applications for restoration of the appeals.
Appeal - Limitation - Delay in filing appeal - Condonation of delay
... ... ... ... ..... should have been taken up to be decided in appeal after condoning the delay. Death of the father of the Excise incharge is sufficient cause to explain the delay in this case. 3. emsp The delay, therefore is condoned and the appeal is allowed as remand to the Commissioner (Appeals) at this stage we were informed by the ld. C.A. for the appellant that Rs. 40,000/- out of Rs. 85,000/- determined against the appellants have been deposited verification of this fact, the Commissioner (Appeals) should not insist on any further pre-deposit and hear the appellant on merit and decide this issue. 4. emsp Appeal disposed off in above terms as remand.
... ... ... ... ..... goods are supplied without packing, It, therefore, appears that goods are generally sold in packing and, therefore, as per Supreme Court decision in Ponds India case, the cost of packing is liable to be included in the assessable value. rdquo 2. emsp In view of the categorical finding of the Commissioner that the respondents have not been able to show a single case in which the goods were supplied without packing, we are of the view that he was justified in holding that the cost of such packing, in which the goods are generally sold, are liable to be included in the assessable value. Accordingly, we dismiss the appeal.
... ... ... ... ..... ending cases also, the credit cannot be denied on this ground and the Tribunal remanded the matter to the Assistant Commissioner to examine the admissibility of credit in view of the amended provision of the Rules. In these circumstances, in view of the decision of the Tribunal, in the matter, in respect of the credit or alternator as capital goods, is remanded to the Adjudicating authority for deciding afresh. 5. emsp In respect of the credit of Rs. 13,476.06, it is admitted by the appellants that credit was taken on the strength of Original copy of invoices. It is now, settled law that credit can be taken on the strength of Original copy of invoice in case Duplicate copy of transporter is lost during transportation. Appellants had not received the goods under the cover of Duplicate copy of the transporter which is a valid duty paying documents for MODVAT purpose. Therefore, the credit was rightly denied by the lower authorities. The appeal is disposed of as indicated above.
... ... ... ... ..... terials and other components imported for the manufacture of rotor blade. The fee is not related to the imported goods. Learned Departmental Representative submitted that since Tool and Mould Specifications are part of the agreement for transfer of know-how it has to be taken that the import of the Mould would take in a conditional sale. We are not able to accept this contention also. No clause in the agreement is brought to our notice which would show that know-how licence fee or any part of it was being paid and the know-how transfer is made subject to the condition that the mould will be imported from the foreign collaborator. According to us both the conditions required under Rule 9(1)(c) are not satisfied in the present case. Reliance placed by the Learned Counsel on certain decisions of this Tribunal is fully justified. The ratio of those decisions would support the appellants contention. 8. emsp In view of the above we set aside the order impugned and allow the appeal.
Appeal - Dismissal of - Non compliance with stay order
... ... ... ... ..... s of both the sides. After considering the financial condition of the applicant company they were asked to deposit only Rs. 10 lakh out of the total duty demand of Rs. 10.94 lakhs and Rs. 10 lakh penalty. Similarly in another case they were directed to deposit only Rs. 2 lakhs whereas the duty confirmed against them was Rs. 5,61,935/- and penalty of Rs. 6,61,935/- that mere fact that they have been declared sick or the Hon rsquo ble High Court has restrained them from effecting any sale of goods does not mean that they are not required to pre-deposit any amount for the purpose of entertaining their Appeal. We, therefore, find no merit in the applications which are rejected. Accordingly for non-compliance with the provisions of Section 35F of Central Excise Act, all the appeals are dismissed. However, in the interest of justice, we give liberty to the Applicants to apply for restoration of appeals if the amount ordered to be deposited by the Tribunal is deposited by 15-7-2004.
... ... ... ... ..... ins covered in favour of the assessee by the decision of the Tribunal in the case of Maheshwari Mills Ltd. v. C.C.E., Ahmedabad - 2004 (165) E.L.T. 246 (T) and the judgment of the Hon rsquo ble Supreme Court in the case of C.C.E., Jaipur v. Banswara Syntex Ltd. - 1996 (88) E.L.T. 645 (S.C.). 3. emsp We have perused the records and have considered the submissions made by both sides. In view of the specific provisions of Rules 9 and 49 deemed removal of the goods takes place once assessment is made and goods are assigned for future use within the factory of production itself. It is well settled that liability to duty arises at the time and place of removal. The goods in question have already discharged duty. There is no provision in law warranting their reassessment at a later stage when they were sold. Moreover, the sale also takes place after completion of exempted process like winding or reeling. The appeal succeeds and is allowed with consequential relief to the appellants.
... ... ... ... ..... aims that strictly speaking, the inputs received by the appellants ought to have discharged duty from the RG 23A Pt. II account and not through RG 23C Pt. II. There is no other grand of challenge to the findings in the impugned order. 4. emsp On going through the reasoning contained in the order of the Commissioner (Appeals), especially the findings that both RG 23A Pt. II and RG 23C Pt. II had sufficient balance to cover the duty payment on the ldquo inputs rdquo in question requiring the appellants to make a debit in RG 23A Pt. II and consequently permit them to raise a credit of the corresponding amount in RG 23C Pt. II will be a revenue neutral exercise, though a technical requirement, I hold that the Commissioner (Appeals) was right in his approach in treating the deficiency in the duty paying document as a condonable lapse. The Commissioner (Appeals) rsquo s order is therefore sustainable and consequently the revenue appeal is required to be rejected and hence rejected.
... ... ... ... ..... e cleared at concessional rate of duty from an EOU. The departmental authorities did not accept the proposition that the limit of 50 of the FOB value of exports would be reckoned by including the deemed export. The appellants have placed reliance on certain judgments of the Tribunal. However, we note that the deemed export being the clearances within the country, cannot prima facie be treated as export, to work out the entitlements of levy of concessional rate of excise duty on such clearances. 3. emsp Accordingly, we hold that the appellants have not made a strong prima facie case on merits to waive the entire duty as demanded. We accordingly order the appellants to deposit Rs. 4 lakhs towards duty by 30-6-2004, and report compliance on 2-7-2004. On such compliance the pre-deposit of balance amount of duty to be paid by M/s. Manisha Fabrics and outstanding penalty to be paid by Shri Mahesh B. Patel, shall stand waived and their recoveries stayed till disposal of the appeals.
... ... ... ... ..... of the table annexed to Notification 14/92, has great force. Although the benefit of this notification was not claimed for the product in dispute, and what was claimed before the Commissioner was the benefit of Notification 84/94-C.E., dated 25-4-1994, which claim has been rejected on the ground that the period in dispute, viz. April 1992 to November 1993, is prior to the issue of Notification 84/94, on examination of Notification 14/92 we find that it covers the product in dispute and the condition set out against Sr. No. 3 of the table to Notification 14/92, namely that no credit of duty paid on inputs used in the manufacture thereof has been availed under Rule 57A, admittedly stands fulfilled, as no duty has been paid on the product and therefore no question of taking credit of duty on the product arises. 4. emsp In the light of the above discussion, we extend the benefit of Notification 14/92-C.E. to the goods in dispute, set aside the impugned order and allow the appeal.
... ... ... ... ..... ale and only captive consumption, it was incumbent on the appellants to declare all the details of expenses inclined in relation to the activity of manufacture. Failure to do so does amount to misstatement/suppression etc. If a similar act was to be noticed in the case of an assessee who is not a Government agency, the same set of circumstances would lead to the conclusion of evasion. Therefore, on account of the face of the appellants being a State Government Unit should not lead to a different conclusion. 6. emsp Accordingly, we hold that, the Commissioner was correct in holding this case to be covered by the larger period of limitation for duty demand. We also note that on merits the demand is sustainable as there is no worthwhile counter to challenge the inclusion of the various charges in the assessable value. However, taking into consideration the fact that the appellant is involved in rendering public service, we set aside the penalty. The appeal is otherwise rejected.
... ... ... ... ..... t instead of allowing the refund to the appellants it must be credited to the Consumer Welfare Fund. The refund claim is consequent to the finalisation of the provisional assessment of the period of 1984, which was finalized in 1997. At that time there was no provision under Rule 9B about the application of the principle of unjust enrichment. The appellants had relied on the decision of the Supreme Court in the case of C.C.E., Mumbai-II v. Allied Photographic India Ltd., 2004 (166) E.L.T. 3 (S.C.) wherein it was observed that in Para 104 of Mafatlal rsquo s case it has been held that in cases where duty is paid under Rule 9B and refund arises on adjustment under Rule 9B(5) then such refund will not be governed by Section 11B. Since in this case the provisional assessments were finalized, therefore Section 11B and principles of unjust enrichment will not apply and the amount of refund has to be given to the appellants. We, therefore, allow the appeal with consequential relief.
... ... ... ... ..... he percentage of waste and scrap exceeded the permissible limit. 2. emsp The appellants have no prima facie case for total waiver. However, keeping the facts and issue involved, the appellants are directed to deposit Rs. 25,000/- within six weeks from today and on making this deposit, the pre-deposit of balance duty and entire penalty shall stand waived and recovery stayed till disposal of the appeal but in the event of failure to comply with this order, the appeal shall stand dismissed under Section 35F of the Act.
... ... ... ... ..... rightly argued by the learned SDR. Be that as it may, we find that the Commissioner, in Paras 12 and 15, has given his finding that he has examined the records submitted by the appellants and found that there is no sufficient compliance of the notification. In all similar matters, the hospitals have been directed to pre-deposit the entire amounts in the light of the judgment rendered by the Apex Court in the case of Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India - 1997 (89) E.L.T. 425 (S.C.). We direct the appellants to pre-deposit the entire duty amount of Rs. 37,03,546/- (Rupees thirty-seven lakhs three thousand five hundred and forty-six only) within four months from today. On such deposits being made, the penalty is waived and recovery stayed till the disposal of the appeal. It is made clear that if the amounts are not deposited, then the appeal will be liable for dismissal under Section 129E of the Act. Call on report of compliance on 14th September, 2004.
... ... ... ... ..... rectly covered by the decision of this Tribunal in Appeal Nos. E/1796 to 1800/97 under Order No. C-II/2325-29/WZB/2003, dated 25-9-2003 2003 (158) E.L.T. 771 (T) . 5. emsp We have perused the records and considered the submissions made by both sides. The appellant had reversed Modvat credit in respect of the export consignments long before the Amnesty Scheme was issued. Last of the reversal was about one and half years before the Scheme of 1997. Authorities raised no objection. If they considered that further payment was called for, they should have issued demand within normal time limit. Even when the Amnesty Scheme to compound the violation of the notification was issued in January 1997, the appellant did not apply to avail of it. The authorities are compelling it. An Amnesty Scheme is for offenders to opt for and not for revenue authorities to enforce. In these facts and circumstances, we find merit in the appeal. The same is allowed after setting aside the impugned order.
... ... ... ... ..... law, being the ldquo maximum price. rdquo 3. emsp We have heard the rival contentions. It is true that the explanation (1) to Sec. 4A authorises adoption of maximum price from amongst the several declared prices. However, this explanation has to be read in conjunction with the subsequent explanations i.e. 2(a) and 2(b). It is apparent, that on the package for sale at the factory gate, only one retail sale price is declared which is Rs. 21,000/-. In terms of this explanation, the case for referring to any other price would not arise. We note that the explanation 2(b) will not come into play in this case for the reason that on a package different prices for sale for different areas are not declared. 4. emsp Accordingly, we hold that the applicants have made a strong prima facie case for waiver of pre-deposit of the amount of duty and penalty. Therefore, pre-deposit of the entire duty demand and the penalty are waived and recovery thereof stayed, pending disposal of the appeals.
... ... ... ... ..... eals were dismissed for non-appearance. They seek for restoration of the appeal. 2. emsp Heard both sides in the matter. 3. emsp On a careful consideration we notice from the records that the hearing notice has been issued for 26th December, 2003. There is no proof of service of notice for hearing on 27th January, 2004. Therefore the appellants rsquo prayer for restoration of appeals is justified. The Final Order Nos. 119-124/2004, dated 27-1-2004 is recalled and the appeals are restored to its original number. The appeals to come up for final hearing on 1st September, 2004.
... ... ... ... ..... rities dated 15-5-2003 on the envelope. The Advocate cannot explain how without endorsement from the Postal Authorities this Registered Letter reached to the Commissioner rsquo s office and they collected it from there. There has to be some endorsement, from the Postal Authorities. In the absence of this, it is difficult to agree with the contention of the Advocate that this order was received by them on 7-7-2003. The appeal has been filed in this case on 21-10-2003. Thus, there is a delay of more than two months, which have not explained satisfactorily. In view of the above, we do not find any justification in condoning the delay and the appeal is rejected as time-barred.
