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Case Laws
Showing 201 to 220 of 772 Records
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2005 (2) TMI 712
Penalty - Cenvat/Modvat - Reversal of credit ... ... ... ... ..... r para 6 thereof as regards period of limitation under Section 11A and the Machino Montell decision of Larger Bench is required to be followed consequences of reversal of credit being credit not availed as held by Chandrapur Magnet by Apex Court in the following term. ldquo hellip hellip hellip hellip hellip hellip hellip hellip hellip In such a situation it cannot be said that the assessee has taken credit for the duty paid on the inputs utilized rdquo hellip hellip hellip would induce us to set aside the penalties in this case. (c) The ld. advocate appearing for the appellants does not press for the appeal on interest. The same is required to be confirmed. (d) The penalty imposed on the Excise Clerk is also required to be set aside in view of the finding arrived at herein, as regards penalties imposed on assessee and also no case is found of any confiscation liability. (e) The appeals are required to be disposed off in above terms. Ordered accordingly. (Pronounced in Court)
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2005 (2) TMI 711
Confiscation and penalty - Demand - Manufacture - Penalty - Cenvat/Modvat - Confiscation of vehicle - Clandestine removal
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2005 (2) TMI 710
Adjudication - Order of Collector of Central Excise - Legality of - Demand and penalty ... ... ... ... ..... records of any decision for the purpose of satisfying himself about the correctness, legality or propriety of the decision. The section does not vest with him the power of enhancing the original period covered by the show cause notice and the order/decision passed in pursuance to that show cause notice. Similarly, Section 35A does not empower the Collector to invoke the penal provisions which were not initially invoked in the show cause notice originally issued to the appellants. In view of this, we hold that the demand of duty of excise is limited to the period mentioned in the show cause notice dated 11-6-1976 and the appellants are liable to pay the duty of excise for the said period. The remaining demand of duty from them is set aside. As in the initial show cause notice, no penalty was sought to be imposed, we set aside the penalty also imposed on the appellants. The appeal is disposed of in the above terms. (Operative part of Order pronounced in open Court on 2-2-2005).
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2005 (2) TMI 709
Exemption - Auto Rickshaw - Demand ... ... ... ... ..... have been manufactured by M/s. Twin Cities are duty paid. M/s. SAPL contended that M/s. Twin Cities Auto Engineering is an SSI unit. The chassis were cleared under exemption available to SSI. Therefore the same should be considered duty paid. In our view, the contention of M/s. SAPL is not acceptable. If the chassis is cleared under exemption, it is clearly established that the same are non-duty paid. When they are non-duty paid, the exemption notification is not applicable. Supreme Court decision in Dhiren Chemical Industries case 2002 (139) E.L.T. 3 (S.C.) is squarely applicable to the facts of this case. Hence the findings of the Commissioner is correct. Under these circumstances, the OIO is legal and proper. 9Since we have not found any merits either in Revenue rsquo s appeal or in Party rsquo s appeal, we have no other option but to uphold the OIO in entirety. The Revenue rsquo s appeals and the party rsquo s appeals are dismissed. (Pronounced in open Court on 2-2-2005)
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2005 (2) TMI 708
Stay/Dispensation of pre-deposit - Demand and penalty ... ... ... ... ..... sue in dispute stands covered in their favour by the Tribunal rsquo s decision in Monica Electronics Ltd. v. CC, New Delhi - 2001 (136) E.L.T. 258, being the issue as to whether the amendment in the Handbook which took place on 1-10-1999 by which de-bonding of second hand machines under EPCG scheme was prohibited would operate against the applicants to whom EPCG licence was granted by DGFT prior to such amendment, i.e. 5-8-1999. emsp 3.In view of the case law cited by the learned counsel for the applicants, which prima facie covers the issue, we waive pre-deposit of duty and penalties and stay recovery thereof pending the appeals. (Dictated in court)
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2005 (2) TMI 707
Production capacity based duty - Demand ... ... ... ... ..... efore, the duty for only two months i.e. September and October, 1997 could be demanded from them. The short paid duty for these two months was only of Rs. 35,377/-. emsp 3.The learned Commissioner (Appeals) has accordingly imposed penalty of Rs. 35,377/- on the assessees. The plea of the Revenue that the penalty amount deserves to be enhanced, cannot be accepted, keeping in view the facts and circumstances of the case. Rather the prayer of the assessee for the reduction in the penalty, in our view, deserves to be accepted as the non-payment of differential duty was not deliberate. It was on account of the closure of their unit permanently. Therefore, the penalty is reduced to Rs. 10,000/- (rupees ten thousand only). The impugned order accordingly stands modified. emsp 4.Consequently, the appeal filed by the Revenue is dismissed and the appeal filed by the assessee is partly allowed in the above terms. (Operative part of this order was pronounced in the open Court on 1-2-2005)
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2005 (2) TMI 706
Refund of octroi duty - Limitation ... ... ... ... ..... of the Petitioner produced cartons of the products to demonstrate that octroi duty has not been charged or recovered separately at any point of time. 13.In the circumstances, I am of the view that the plea of the Petitioner for the grant of refund of octroi duty for the period between 9th September, 1989 to 10th December, 1992 ought not to have been rejected by the Municipal Corporation. The Petitioner, however, before being granted a refund of octroi duty would be required to produce all the necessary documentary material as provided for in Rule 26 of the Octroi Rules. The Petitioner would be at liberty to do so within a period of 8 weeks from today. The Municipal Corporation shall grant such refund to which the Petitioner would be found entitled upon due scrutiny of the proof of payment of octroi duty within a period of three months thereafter. The Petition shall stand disposed of in the aforesaid terms. In the circumstances of the case, there shall be no order as to costs.
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2005 (2) TMI 705
Refund claim - Limitation ... ... ... ... ..... ove cases involved provisional assessment, this plea has not been substantiated with reference to the facts of the cases. Further, the finding of the Commissioner (Appeals) that the question of filing a separate refund claim under Section 11B did not arise where the assessee was entitled to take credit of the excess duty paid in their PLA on receipt of RT-12 return assessed by the proper officer has not been effectively challenged, nor has it been shown that the provisions of Rule 173-I were subject to the provisions of Section 11B of the Act. In the circumstances, we have to accept the reliance placed by learned Commissioner (Appeals) on the Supreme Court rsquo s decision in Mafatlal Industries (supra) for holding that the refund claims in question were not affected by the time-bar provisions of Section 11B. In the result, the impugned orders are sustained and the Revenue rsquo s appeals are rejected. (Operative portion of the order was pronounced in open Court on 28-2-2005)
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2005 (2) TMI 704
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... r. 2. emsp It is well settled that the input receiver can take Modvat credit equivalent to the duty paid. Therefore, prima facie, there was no irregular taking of credit. The difference in nomenclature should not also be a ground to deny the eligible credit due to them, since credit is dependent on whether the item is input or not and not on how it is described. The requirement for pre-deposit of credit amount and penalty is waived and the recovery stayed till disposal of the appeal. (Dictated and pronounced in open Court)
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2005 (2) TMI 703
... ...
... ... ..... herefore, to calculate the duty leviability on the impugned goods, we have to assume that they are being imported into India. Since, the recipient in this case is WHO, Notification 84/97 comes into play. Suppose, the Notification 84/94 is not there, then we have to calculate the Customs Duties which are normally leviable. Since, Notification 2/95 provides an effective rate of 50 of the aggregate value, we have to arrive at the duties by 50 of what is calculated above. Since Notification 2/95 is read with any other available Notification, one cannot escape applying Notification 84/97. In view of the deeming provision, there is no substance in Revenue rsquo s contention that Notification 2/95 cannot be read with Notification 84/97. Hence, the appellants are rightly eligible for Notification 2/95 read with 84/97. The OIA is devoid of any merits. We allow the appeal with consequential relief. (Operative portion of this Order was pronounced in open Court on conclusion of hearing).
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2005 (2) TMI 702
Demand - 100% EOU - Exemption, conditional exemption ... ... ... ... ..... led to fulfil the conditions by exporting the cut flowers within the prescribed period of LOP, they were not entitled to avail the benefit of Notification No. 136/94, dated 10-11-1994. They were also not entitled to avail the concession of 100 EOU. 3. emsp The learned counsel has not been able to assail the impugned order on merits. It is an admitted fact that for having failed to implement to project within the validity period of LOP, the appellants could not avail the concession of 100 EOU and benefit of above said notification. Therefore, the duty has been rightly confirmed against them. However, keeping in view the facts and circumstances of the case, in our view, the penalty deserves to be reduced and the same is reduced to Rs. 5,000/- (Rupees five thousand only). 4. emsp Except for this modification in the penalty amount, the impugned order is upheld. The appeal stands disposed of accordingly. (Operative part of this order was pronounced in the open Court on 24-2-2005).
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2005 (2) TMI 701
Refund claim ... ... ... ... ..... Counsel for the appellant and ld. DR for the Revenue and perused the records. 3. emsp The contention of the learned counsel is that the issue remains covered by the decisions of this Tribunal in the ease of CCE, Meerut v. HCL HP Ltd. - 1999 (112) E.L.T. 487 (Tribunal) and Rubber Inds. (India) v. CCE, Bombay-I, 1996 (83) E.L.T. 116 (Tribunal). A perusal of the above decisions makes it clear that since payment of duty has taken place twice on the same goods, refund is justified. The appellant rsquo s case remains covered by the aforesaid decisions. The impugned order is set aside and the appeal is allowed. (Dictated and pronounced in open Court)
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2005 (2) TMI 700
Stay/Dispensation of pre-deposit - Penalty ... ... ... ... ..... ral Excise, Bangalore - 2001 (138) E.L.T. 414 (Tri.-LB) 1999 (82) ECR 98 (Tri.) , the Larger Bench has held that preparations of kind used in animal feeding consisting of or more vitamins mixed with diluents to be considered as animal feed and classifiable under Heading 23.02 of the Central Excise Tariff Act, 1985. 16. emsp Further, the decision of the Madras High Court in the case of Shri R. Sundar v. Dy. Collector of Customs, Tuticorin - 1996 (82) E.L.T. 451 (Mad.) , is relied upon in respect of Show Cause Notice issued for seized goods and the effect of limitation. 17. emsp Having considered the aforesaid citations and the facts and circumstances of the case, we are of the view that the appellants have made out prima facie case for granting full waiver and stay its recovery. Accordingly, pre-deposit of the penalty amount is waived and its recovery is stayed. Early hearing is granted in the appeal on 5-4-2005. Applications are disposed off accordingly. (Pronounced in Court)
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2005 (2) TMI 699
Refund claim - Limitation ... ... ... ... ..... t according to which, in the present matter, the refund claim has to be filed within six months from the date of payment of duty. It is not the case of the appellants that they had filed the refund claim within six months from the date of payment of duty. The refund claim has been filed by them after the judgment of the Supreme Court in the case of Baroda Electric Meters Ltd. (supra). There is no force in their submissions that the time limit will be computed from the time the judgment was pronounced by the Supreme Court as there is no such provision in Section 11B of the Act. It has been held by the Supreme Court in the case of Miles India Ltd. v. Assistant Collector of Customs, 1987 (30) E.L.T. 641 that the Customs Authorities, acting under the Act, are bound by the period of limitation provided therefor under Section 27(1) of the Customs Act, 1962. Accordingly, we find no merit in the appeal which is rejected. (Operative part of order pronounced in open Court on 23-2-2005)
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2005 (2) TMI 698
... ...
... ... ..... ant is that Rule 96E permits the yarn manufacturer to despatch the yarn produced by him to another person for many purposes, including for the purpose of manufacture of cotton fabrics, and that no duty is required to be paid by the yarn manufacturer. It is being submitted that duty demand is contrary to the terms of the Rule. 3. emsp I have perused the record and heard ld. SDR. Rule 96E has the title ldquo Procedure for removal of cotton yarn hellip hellip .. from one factory to another without payment of duty rdquo emphasis supplied . The Rule provides that lsquo yarn rsquo may be removed ldquo without payment of duty from one factory to another rdquo . In the face of this legal position, the duty demand made in the present order is clearly contrary to the terms of Rule 96E. That demand and penalty imposed are therefore clearly illegal and they are required to be set aside. I do so, with consequential relief, if any, to the appellant. (Dictated and pronounced in open Court)
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2005 (2) TMI 697
Cenvat/Modvat - Declaration - Filing of ... ... ... ... ..... , in the subsequent period, the requirement of filing the declaration has also been totally dispensed with. There are also a number of Tribunal decisions allowing credit in case where the declarations were not filed in view of such relaxation. Keeping all these aspects in view, we are of the opinion that the Apex Court decision in the case of Eagle Flask Industries Ltd. v. CCE, Pune - 2004 (171) E.L.T. 296 (S.C.) which is in respect of grant of exemption cannot be applied to the present case. As such, we do not find any reason for interfering with the order passed by the Commissioner in this regard. We also note that the Commissioner, in any case, has penalized the appellants to the extent of Rs. 1 lakh for contravention of the rule and the requirement of filing declaration in time, which in our view meets the ends of justice. 5. emsp The appeal is only partly allowed as indicated in paragraph 2 and the rest of the impugned order is upheld. (Pronounced in Court on 23-2-2005).
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2005 (2) TMI 696
Cenvat/Modvat ... ... ... ... ..... stinguishable. In the present case the appellants were enjoying the benefit of small scale exemption for some time. It was during that time the reusable scrap was generated. It is not the case of the appellants that they had a stock of granules (inputs) when they reverted to duty paying sector. They were talking of granules contained in the reusable scrap that was generated during the course of manufacture of final products. Reusable scrap used in the manufacture of disposable plastic containers itself has become an input in the manufacture of final product in the appellant rsquo s case. The input (granules) contained in such scrap cannot be considered as an input in the manufacture of final product namely the disposable plastic containers particularly when reusable scrap was generated when the appellant was enjoying the benefit of small scale exemption. 5. emsp The appeal is rejected. (Operative portion of the order has been pronounced in the court on completion of hearing).
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2005 (2) TMI 695
Confiscation - Non-accountal in books of accounts ... ... ... ... ..... roper and justified. In this connection, the following case laws are relevant. (i) Balls and Cylpebs Ltd. v. CCE - 1997 (92) E.L.T. 496 (T) (ii) Associated Cement Co. Ltd. v. CCE - 1997 (94) E.L.T. 161 (T) (iii) Bhillai Conductors (P) Ltd. v. CCE - 2000 (125) E.L.T. 781 (T) The show cause notice did not have any proposal for demand of duty. Therefore, demand of duty in the order in original and subsequent continuation in the order in appeal is not proper and justified. But the appellants assure that they will not clear any goods without payment of duty and they have no such intention at any time. rsquo rsquo 2. emsp None is present for the appellants. I have perused the records and heard the learned JDR. There is no material on record contrary to the submissions of the appellants. I am therefore of the view that the impugned order is not justified in the facts and circumstances of the case and I set aside the same and allow the appeal. (Dictated and pronounced in open Court).
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2005 (2) TMI 694
Demand - Removal of inputs as such ... ... ... ... ..... it Rules. The Lower Authority has imposed a penalty of Rs. 1 lakh under Rule 13 of the Cenvat Credit Rules. It is a settled position in law that no penalty can be imposed in cases where it involves interpretation of law as held in (i) Hindustan Steels Ltd v. State of Orissa - 1978 (2) E.L.T. J159 (S.C.) (ii) DCW Ltd. v. AC, Tuticorin - 1996 (88) E.L.T. 31 (Mad.) Hence, I set aside the impugned order and allow the Appeal. Appeal allowed. rdquo 2. emsp Perused the records and heard both sides. The contention of the ld. Counsel for the appellant is that the duty payments were at the correct rate and at the transaction value and the Revenue could not have any grievance in view of the provision in the Rule quoted by the Commissioner in his order. Sample invoices were also shown during the hearing. 3. emsp The finding of the Commissioner is in terms of the Rule. Therefore, there is no illegality in the order. The appeal fails and is rejected. (Dictated and pronounced in open Court)
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2005 (2) TMI 693
... ...
... ... ..... hazardous waste for which authorisation from the State Pollution Control Board under Rule 11 of the Hazardous Waste (Management and Handling) Rules, 1989 is required, and import is permissible only against a valid import licence, which the appellant did not possess. Therefore, the goods are clearly liable to confiscation. This being so, the appellant is also liable to penalty under Section 112 of the Customs Act, 1962. However, in the totality of the facts and circumstances of the case, including the value of the imported goods, we reduce the penalty to Rs. 1,00,000/-. 4. emsp The appeal is thus partly allowed. (Operative part pronounced in court)
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