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Showing 421 to 440 of 520 Records
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2004 (5) TMI 110 - CESTAT, NEW DELHI
Demand - Natural justice - Penalty ... ... ... ... ..... the Central Excise Act and Rs. 50,000/- under the Customs Act. 7. But the imposition of penalty against appellant No. 2 in our view, is not sustainable for want of evidence to prove of having in any manner, direct hand in the removal of the goods from the factory premises for demonstration, repair, etc. purposes. The day to day affairs of the company were looked after by Shri Narinder Randhawa, Manager Export and Import under whose nose, the goods were manufactured and disposed of in the DTA as admitted by him. Therefore, penalty against appellant No. 2 is set aside in toto. 8. Consequently, the impugned order regarding confirmation of duty under the Customs and Central Excise Act against the company appellant No. 1 is upheld while in respect of penalty under both these Acts against the same is modified to the extent detailed above. However, against appellant No. 2, the impugned order is set aside. Therefore, both the appeals of the appellants stand disposed of accordingly.
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2004 (5) TMI 108 - CESTAT, NEW DELHI
Manufacture - Vitamin premixes - Marketability of ... ... ... ... ..... arned Advocate that after May, 1999 when they furnished the information about mixing of vitamins to the Department, extended period cannot be invoked. Further as Note 11 to Chapter 29 was introduced only with effect from 1-3-97, no duty of excise can be demanded in terms of the said Note prior to 1-3-1997. We also agree with the learned Advocate that they will be eligible to avail the Modvat credit of the duty paid on inputs used in the making of inter-mixtures of vitamins subject to their production of duty paying documents, within two months of receipt of this Order, to the satisfaction of the jurisdictional adjudicating authority whom the matter is remanded for computing the duty of excise payable by the appellants. As the amount of duty is to be redetermined, we leave the question of penalty open to be decided by the jurisdictional adjudicating authority. The present penalty imposed under the impugned order is thus set aside. The appeal is disposed of in the above manner.
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2004 (5) TMI 104 - CESTAT, MUMBAI
Adjudication - Natural justice - Test report ... ... ... ... ..... ts, they contested the correctness of the test reports and requested the concerned authorities to subject the remnants of samples or the duplicate samples for a re-test. This request, we note, has not been acceded to. Instead, the contents of the test report are justified in the impugned order by saying that the laboratory could not have recorded the presence of acrylic fibre if the same was not present in the export product. In this connection, we would like to emphasise that the appellants have a right to contest the correctness of the test report. Denial of this right is denial of natural justice. In the absence of a re-test report, the findings of the said test report have to be discarded as also the findings based on the said report. 5. Accordingly on this limited point, we note that, the order passed by the Commissioner cannot be sustained. Consequently, we set aside the impugned order, and allow the appeal, with consequential relief, if any, in accordance with the law.
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2004 (5) TMI 102 - CESTAT, MUMBAI
Redemption fine and penalty - Quantum of - Margin of profit ... ... ... ... ..... t there is a lowering of the margin of profit in such imports over a period of time. The ld. D.R. s plea to revert back to the heady days of 100 or more profit and uphold this order cannot be accepted. In this view, for the same kind of goods, imported at same port, the fines and penalties have to be at same level. If, in a particular case, exemplary punishment is to be arrived at, the hands of the adjudicator are not bound. However, he has to apply his mind and arrive at reasons why the departure from norms was called for in a given case. No such reasons exist in the findings. (f) The ld. Advocate s submission that the earlier orders of 45 fine and 5 penalty have been accepted inasmuch as refunds have been sanctioned indulge us to follow the same. 2. In view of the findings the appeals are to be partially allowed by reducing the redemption fine to 45 and penalty to 5 of the ascertained value. 3. Ordered accordingly and appeals disposed off, partially allowed in above terms.
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2004 (5) TMI 101 - CESTAT, NEW DELHI
Valuation (Customs) - Drawings and diagrams ... ... ... ... ..... hould have been undertaken elsewhere than in India . We have already noted that what is attracted by the Rule are the detailed design work, drawing etc. undertaken by Davy Power Gas India Pvt. Ltd. That work was undertaken in India. And work undertaken in India is not attracted by the Rule. 7. From what is stated above, it is clear that the Basic Engineering Package supplied by the joint venture partner does not come within the scope of the Rule for the reason that that package was not what was necessary for the manufacture of the equipment and what was necessary was undertaken in India . 8. In these facts and circumstances, we are of the view that findings in the impugned order of the Commissioner (Appeals) are not warranted in the facts of the case and the legal provision. This is the view we took in the case of SRF Ltd. also. In this legal and factual position, we find that the impugned order is unsustainable in law. It is accordingly, set aside and the appeal is allowed.
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2004 (5) TMI 100 - CESTAT, NEW DELHI
Valuation (Customs) ... ... ... ... ..... ) M/s. Mando Brake Systems - 2004 (163) E.L.T. 333 (2) M/s. S.D. Technical Service (LB) - 2003 (155) E.L.T. 274 (3) Panalfa Dongwon India Ltd. (LB) - 2003 (155) E.L.T. 287 (4) M/s. Polar Marmo Agglomerates Ltd. (LB) - 2003 (155) E.L.T. 283 6.We follow the ratio of the above decisions and hold that no part of the licence fee is liable to be added to the transaction value of the machines imported. But since there is no challenge before us by the assessee on the inclusion of 2500 US to the assessable value made by the adjudicating authority, the appellant will not have any relief to that extent. Since we are taking a view that the licence fee is not addable to the value of the imported goods, we are not going into the issue whether the Commissioner (Appeals) has gone beyond the show cause notice. 7.In the result, we set aside the order impugned and allow the appeal subject to our observation regarding addition of 2500 US covered by the order passed by the adjudicating authority.
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2004 (5) TMI 99 - CESTAT, NEW DELHI
Coffee - Central Excise Tariff - Residuary heading ... ... ... ... ..... cts, essences and concentrates thereof. That order has become final, upon the Apex Court dismissing the assessee s appeal. In these circumstances, we find no merit in the appellant s submission on classification. They are rejected and the classification ordered by the lower authorities is confirmed. 8. There is however merit in the other submissions of the appellant. The item should be correctly valued treating the price as cum-duty for the period prior to their being specified under Section 4A and thereafter under Section 4A of the Central Excise Act. Similarly, adjustment towards credit on inputs should also be allowed. The duty demand should, thus, be recomputed and the amount intimated to the appellants so that they can make payment of the correct amount of duty. The present is a dispute in the open. That too a purely legal one. There is no case for penalty or interest claim in such a case. Therefore, they are set aside. 9. The appeals are disposed of in the above terms.
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2004 (5) TMI 94 - CESTAT, NEW DELHI
Cenvat/Modvat ... ... ... ... ..... 5. In the present case the appellants filed the declaration, during the relevant period, seeking credit in respect of disposable syringes and needles with the declaration that these are neither raw material nor component or packing material, or catalyst or solvent. The disposable syringes and needles are packed with injections and sold as unipack. The contention of the appellants is that as per Chapter Note V to Chapter 30 of Central Excise Tariff, the adoption any other treatment to render the product marketable to the consumer shall amount to manufacture and the Revenue treats the process of packing medicines with disposable syringes and needles as manufacture process liable to duty. The Revenue on this ground is adding the value of disposable syringes and needles in the assessable value of unipack. In this situation, the Revenue cannot deny the claim of Modvat credit in respect of disposable syringes and needles. The impugned order is set aside and the appeal is allowed.
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2004 (5) TMI 93 - CESTAT, NEW DELHI
Refund claim (Customs) ... ... ... ... ..... between the parties and it was only a mere assessment of the Bill of Entry. 4. In such cases an application under Section 27 will be maintainable without challenging the Bill of Entry assessment separately. In the present case admittedly there was Lis between the parties and order of adjudication was passed which was not challenged by filing an appeal. Therefore, according to the Learned Counsel the question whether the ratio of Flock India would be applicable in the case of mere assessment of Bill of Entry need not be decided in this case. 5. In view of the above discussion we hold that application filed by the appellant for refund under Section 27 was only to be rejected by applying the ratio of the decision in Flock India. But we make it clear that we do not express any view on the contention taken by the appellant that if it is only a mere assessment of Bill of Entry without a Lis involved, the ratio of Flock India will not be applicable. 6. The appeal stands dismissed.
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2004 (5) TMI 92 - CESTAT, NEW DELHI
Valuation (Central Excise) - Formulation of drugs ... ... ... ... ..... selling and distribution expenses including interest and importer s profit which shall not exceed fifty per cent of the landed cost. Explanation For the purpose of this proviso, landed cost means the cost of import of formulation inclusive of customs duty and clearing charges . 4. The above would show that the ceiling price fixed in respect of drugs which are subject matter of this appeal is retail price and not wholesale price. 5. For the purpose of valuation under Section 4 it is the wholesale price that has to be taken into consideration and not the retail price. Once it is found that the ceiling price fixed is the retail price it is not relevant for the purpose of valuation under Section 4. Therefore, on the facts of this case the demand is not sustainable. Even though the issue referred does not arise in this case, we are inclined to dispose of the appeal itself as, admittedly, no other dispute is involved. The orders impugned are set aside and the appeals are allowed.
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2004 (5) TMI 91 - CESTAT, NEW DELHI
Refund claim - Order ... ... ... ... ..... ling an application of refund. The position will be different when there is no Lis between the parties and it was only a mere assessment on the Bill of Entry. In the facts of the case it was submitted that there was a Lis between the parties. Therefore, we held that the application filed by the appellant therein for refund under Section 27 was only to be rejected by applying the ratio of the decision in Flock India. But we expressed no view on the contention taken by the appellant regarding mere assessment of Bill of Entry without a Lis involved. 3. In the present case also identical contentions are raised. It is submitted that there is Lis between the parties. Under these circumstances, we dismiss the appeal following our order, dated 17-5-2004. We make it clear that we are not expressing any view on the contention of the appellant that if it is only a mere assessment of Bill of Entry, the ratio of Flock India will not be applicable. 4. The appeal stands dismissed as above.
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2004 (5) TMI 90 - GOVERNMENT OF INDIA
Export - Rebate ... ... ... ... ..... specific clarification w.r.t. NCCD, emphasizing that it is a duty of excise under a Finance Act. This specific clarification, in the opinion of the Govt. is not applicable to cess under the Beedi Workers Welfare Cess Act, 1976. 21.Before concluding, Govt. also notes that Hon ble Tribunal in the case of Agarpara Co. Ltd. v. Comm. of Central Excise, Calcutta-II 1997 (96) E.L.T. 270 (Tri.) , held that cess is leviable on export of jute manufacture under section 3 of the Jute Manufacturers Cess Act, 1983. Similarly Hon ble Tribunal in the case of Collector of Central Excise v. Mahindra and Mahindra Ltd. 1991 (53) E.L.T. 408 (T) held that rebate of cess on export of automobiles is not admissible in the absence of notification issued under Rule 12 of the Central Excise Rules, 1944 read with Rule 3 of the Automobile Cess Rules, 1984. Govt. respectfully concurs with the decisions of CEGAT. 22.In View of the above discussion, the Revision Application fails and is accordingly rejected.
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2004 (5) TMI 89 - AUTHORITY FOR ADVANCE RULINGS
Whether the sealed coated tube with filament as per the sample produced by the applicant before us proposed to be imported by them, is not a CFL as is commonly understood in the concerned trade or market and therefore, it will not be liable to anti-dumping duty under the notification No. 138/2002-Cus., dated 10-12-2002?
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2004 (5) TMI 88 - HIGH COURT OF JUDICATURE AT ALLAHABAD
Writ Petition ... ... ... ... ..... e apposite to the present context. 8. In Sheela Devi v. Jaspal Singh, AIR 1999 SC 2859 and Punjab National Bank v. D.C. Krishna, 2001 (6) SCC 569, the Supreme Court held that if the statute provides for remedy of revision or appeal writ jurisdiction should not be invoked. 9. In Union of India v. T.R.Verma - AIR 1957 SC 882 the Supreme Court held that it is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and a prerogative writ It will be a sound exercise of discretion to refuse to interfere in a petition under Article 226 of the Constitution unless there are good grounds to do otherwise. 10. In A. Venkatasubbiah Naidu v. S. Chellappan - 2000 (7) SCC 695 (vide para 22) the Supreme Court deprecated the practice of exercising the writ jurisdiction when an efficacious alternative remedy is available. 11. In view of the above, this writ petition is dismissed on the ground of alternative remedy.
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2004 (5) TMI 87 - HIGH COURT OF DELHI
Appeal/Reference to Sales Tax Appellate Tribunal - Limitation - Delay - Condonation of ... ... ... ... ..... od of thirty days under the proviso to Section 45(1) of the DST Act. Sub-section 2 of Section 62 of the DST Act does not, in any way, dilute the restriction of providing a maximum of 30 days within which the application may be presented. It only provides a method of calculating those 30 days. The learned Counsel for the petitioner contended that looking to the scheme of the Act, there is no express exclusion of the provisions of Section 5 of the Limitation Act, 1963. We are unable to agree with this contention in view of the discussion above and the detailed consideration of analogous provisions in our aforesaid decisions in the cases of M/s. Delta Impex (supra) and M/s. M.R. Tobacco (supra). 9. In these circumstances, we find that the Sales Tax Appellate Tribunal committed no jurisdictional or other error in rejecting the petitioners application for reference under Section 45(1) of the DST Act as being barred by limitation. The writ petition is dismissed. Rule is discharged.
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2004 (5) TMI 86 - HIGH COURT OF GAUHATI
Stay/Dispensation of pre-deposit - Natural justice ... ... ... ... ..... the expression omitted to be done in Section 154 which expression is missing in Section 51, although the same may have a bearing on the issue on merit. Mr. M. Bhuyan, learned counsel appearing for the petitioners upon instructions submitted that although a challenge has been put to Section 154 of the Finance Act, 2003, the petitioners would not like to pursue the same in these proceedings. However, liberty was prayed for to make challenge to the same independent of these proceedings. Liberty is granted making it clear that the same will have no bearing so far as the impugned orders in the present proceedings are concerned. No opinion is also expressed as to whether the decision in J.K. Cotton Spinning and Weaving Mills Ltd. case (supra) will have any bearing to such a challenge. 28. For the foregoing reasons and discussions I do not find any merit in the writ petitions and the same are dismissed. However there shall be no order as to costs. 29. Writ petitions stand dismissed.
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2004 (5) TMI 85 - HIGH COURT OF GUJARAT AT AHMEDABAD
Production capacity based duty ... ... ... ... ..... r galleries will not arise. That finding was given in favour of the petitioners way back in December 2001. Hence it cannot be said that the petitioners had acquiesced in the order including galleries for the purpose of determination of the petitioners annual production capacity. In this view of the matter, there is no impediment to the petitioner challenging the said order dated 24-11-2000 on merits. 7.Accordingly the petition is allowed. The impugned orders dated 24-11-2000 and 9-2-2001 (Annexure B Colly. to the petition) are quashed and set aside only on the ground that the same were passed without giving the petitioners any opportunity of being heard. Hence respondent No. 2 will be at liberty to pass fresh orders for determination of the petitioners annual production capacity for the periods covered by the orders dated 24-11-2000 and 9-2-2001 after giving the petitioners an opportunity of being heard. Rule is made absolute to the aforesaid extent with no order as to costs.
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2004 (5) TMI 84 - HIGH COURT OF GUJARAT AT AHMEDABAD
Penalty - Quantum of - Independent processors - Delay in payment of duty ... ... ... ... ..... t clear whether the petitioners had paid any interest for the delayed payment of duty under Rule 96ZQ(5)(i) and if interest is not paid so far, the same shall be computed and paid within one month from today. 5. From the details given in the Order in Original dated 13-11-2000, it is clear that the delay in payment of the duty amount was only 3 days. Since neither the original authority nor the appellate authority has considered the extent of delay in payment, we set aside the Order in Original and the Order of the appellate authority i.e., Annexures A and B respectively in so far as they impose penalty on the petitioners under the provisions of Rule 96ZQ(5)(ii). The matter is to be remanded to Deputy Commissioner of Central Excise and Customs (L and R), Surat for determination of penalty under the provisions of Rule 96ZQ(5)(ii) of the Rules in light of the principles laid down in the aforesaid judgment. Rule is made absolute to the aforesaid extent with no order as to costs.
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2004 (5) TMI 83 - HIGH COURT OF GUJARAT AT AHMEDABAD
Writ jurisdiction - Penalty - Quantum of ... ... ... ... ..... he petitioners had paid any interest for the delayed payment of duty under Rule 96ZQ(5)(i) and if interest is not paid so far, the same shall be computed and paid within one month from today. 5.From the details given in the Order in Original dated 16-7-2001, it is clear that the delay in payment of the respective amounts was ranging between 10 days to 16 days. Since neither the original authority nor the appellate authority has considered the extent of delay in payment, we set aside the Order in Original and the order of the appellate authority i.e., Annexures A and B respectively in so far as they impose penalty on the petitioners under the provisions of Rule 96ZQ(5)(ii). The matter is to be remanded to Deputy Commissioner of Central Excise and Customs, Vapi for determination of penalty under the provisions of Rule 96ZQ(5)(ii) of the Rules in light of the principles laid down in the aforesaid judgment. Rule is made absolute to the aforesaid extent with no order as to costs.
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2004 (5) TMI 82 - HIGH COURT OF GUJARAT AT AHMEDABAD
Stay/Dispensation of pre-deposit ... ... ... ... ..... and for hearing of the appeals and even if the case of the applicants for financial hardship is not accepted in its entirety, it may be worthwhile considering whether the interests of justice would be served by granting suitable instalments to the applicants so that such applicants do not have to approach this Court merely in order to obtain instalments for payment of duty and/or penalty. We make it clear that the grant of instalments in the facts of the present case is on account of the peculiar facts and circumstances of this case. What should be the number of instalments or what should be the amount of instalments are matters which the Tribunal would determine after considering the facts and circumstances of each case. 7. The petition stands disposed of in terms of the aforesaid directions and observations. A writ of this Court shall be sent to Respondent No. 2-Tribunal and the Registrar of the Tribunal shall bring the same to the notice of all the Benches of the Tribunal.
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