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Showing 241 to 260 of 772 Records
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2005 (2) TMI 672
... ... ... ... ..... connected with the passenger, the premises where the passenger stayed, and has been identified to have given the money of over Rs. one crore in bundles found placed in the baggage and escorted the same and the passenger right up to the International Airport. (d) We find in the circumstances of this case that the charges on the present appellant have to be uphold along with imposing of penalty on confiscation of the currency under the provisions of Customs Act to be well established. The consequent imposition of penalty are therefore upheld. However we find that the penalty of Rs. 5.00 lakhs imposed on him is on the higher side as there is no material on record to find him to be the king-pin in this attempt to export foreign currency and gold in violation of law. We reduce the penalty from Rs. 5.00 lakhs to Rs. 2.00 lakhs on the appellant i.e. Jahubar Sathik alias Babu. 4The appeal is disposed of in the above terms. 5Ordered accordingly. (Dictated and pronounced in open Court)
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2005 (2) TMI 671
Cenvat/Modvat ... ... ... ... ..... he appellants are engaged in packing of lubricating oils from bulk to retail packs on job work basis. The appellants were paying duty at the time of clearance of the repacking of lubricating oil. The inputs as well as packing material was supplied by their principle manufacturer i.e. Castrol India Ltd. on stock transfer basis. There is no dispute that the appellants were not using these inputs in the manufacture of the final product. 3.We further find that the inputs as well as packing material are received under the cover of invoice which were in the name of the appellant and only it was mentioned on account of Castrol India Ltd. In these circumstances, we find that duty paid inputs and packing material were received by the appellant and used in the manufacture of final product, therefore, the credit cannot be denied on the ground that the goods were not purchased by the appellant. The impugned order is set aside and the appeal is allowed. (Order dictated in the open Court.)
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2005 (2) TMI 670
Refund - Unjust enrichment ... ... ... ... ..... rior to 2-6-1998). Therefore, the duty paid by the appellant, subsequently on 19th June 98, on those stocks was a erroneous payment and the appellant rsquo s refund claim is fully legal. Since the duty was paid subsequent to clearance of the goods from the factory, the question of unjust enrichment did not also arise in view of the decision of the Tribunal in the case of Plast Pack Industries. The learned SDR has pointed out that this decision could apply only to cases where the goods had been sold prior to payment of duty. But, I find that the Division Bench decision has made no distinction between clearance and sale. The order speaks of lsquo clearance rsquo . Therefore, the present case remains covered by the decision of the Division Bench. The other decisions referred to by the learned DR has no application to the facts of the present case. The appeal is, accordingly, allowed with consequential relief, if any, to the appellant. (Pronounced and dictated in the open Court).
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2005 (2) TMI 669
Cenvat/Modvat - Deemed credit ... ... ... ... ..... hat the inputs had suffered the Excise duty and the assessee led evidence that the supplier has discharged the duty liability. But in the case in hand, there is neither such a declaration nor any evidence to prove the discharge of duty liability by the manufacturer/supplier of the inputs to the respondents. The learned Commissioner (Appeals) has erred in applying the ratio of the law laid down in that case while setting aside the order-in-original. In my view, the matter deserves to be re-examined by the learned Commissioner (Appeals) after allowing an opportunity to the respondents or after getting a report from the concerned authority regarding the discharge of the duty by the manufacturer/supplier of the inputs to the respondents. 3. emsp Consequently, the impugned order is set aside and the matter is sent back to the Commissioner (Appeals) for fresh decision. The appeal of the Revenue accordingly stands allowed by way of remand. (Dictated and pronounced in the open court)
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2005 (2) TMI 668
Cenvat/Modvat - Duty paying documents - Validity of ... ... ... ... ..... ispute that the inputs were duty paid and that credit was taken only of the amount paid as differential duty. In these circumstances Tribunal rsquo s order in the case of CCE, Chandigarh v. National Fertilizers Ltd. 2002 (48) RLT 160 (CEGAT-Del.) wherein credit of duty paid under TR 6 challan, which was not a prescribed document under Rule 57G of the Central Excise Rules, 1944 was held to be admissible in terms of Rule 57E and Tribunal rsquo s order in Rishabh Instruments Pvt. Ltd. reported in 2001 (132) E.L.T. 299 (Tri.-Mumbai) , is squarely applicable to the facts of the present case. Following the same, we set aside the impugned order and allow the appeals. (Operative part pronounced in Court).
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2005 (2) TMI 667
Appeal - Limitation - Delay of 11 days in filing appeal - Condonation of ... ... ... ... ..... 15-10-2003 and they have filed the present appeal on 19th July, 2004. He, therefore, pleaded that if the period during which they were pursuing the appeal before the Revisionary Authority is excluded then, in fact, there is only a delay of 11 days, which may be condoned. 2. emsp Heard Shri S. Bhatnagar, ld. JDR for the Revenue. He accepted that the delay caused due to pursuing the appeal before the Revisionary Authority has to be excluded. 3. emsp Considering the submissions made by both the sides, I find that the delay is very short and in the interest of justice, the delay is condoned. 4. emsp The appeal is posted for hearing on 3rd of June, 2005. (Order dictated and pronounced in open Court on 4-2-2005).
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2005 (2) TMI 666
Adjudication - Jurisdiction ... ... ... ... ..... technical/administrative irregularity and cannot be a legal infirmity rdquo . I am unable to agree with the Commissioner (Appeals) that it is a technical/administrative irregularity. The appellant cannot be driven to a situation where he is compelled to conduct his defence before an officer who is not entitled to conduct the proceeding as per the show cause notice itself. This goes to the root of the issue and is a legal defence. The appellant before me raised this issue in the appeal memorandum well as during the course of hearing. Ignoring this plea would mean that the Tribunal approved such proceedings. 9. emsp I therefore, feel compelled to remand the case back with directions to have the case adjudicated by the appropriate authority namely, the Commissioner. 10. emsp The order of the Commissioner (Appeal) is set aside by way of remand. The Department is free to adjudicate the show cause notice in terms of my observation above. The appeal is disposed off by way of remand.
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2005 (2) TMI 665
Testing - Removal of goods for testing ... ... ... ... ..... rrect. Under these circumstances, there is no justification to hold that the permission under Rule 56B has been obtained by misdeclaration. There is also nothing in Rule 56B prescribing a manufacturer to transfer goods to another manufacturer on sale as held by the Tribunal in the case of Coastal Gases and Chemicals v. CCE 1988 (33) E.L.T. 437 (T) . We have already held that there is no misdeclaration. Assuming that the Rule 56B permission is erroneous, the same is binding on the Department, removal under such permission cannot be subsequently questioned even if the permission was granted in error as held in the case of Collector of Central Excise, Cochin v. Shree Bagavathi Tea Estates Ltd. 1997 (92) E.L.T. 240 (T) . In view of the above findings, the Order-in-Original has no merit. There is also no case for imposing penalties on the appellants. Hence we allow the appeals with consequential relief. (Operative portion of order pronounced in open Court on conclusion of hearing)
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2005 (2) TMI 664
Penalty - Non-payment of National Calamity Contingent Duty ... ... ... ... ..... tion in respect of the said duty was given that the Respondent did not pay the duty amounting to Rs. 2,29,200/- during the period from March to November, 2001. The Additional Commissioner had, besides confirming the demand of duty, imposed a penalty of equal amount on the respondents which has been set aside by the Commissioner (Appeals) on the ground that the respondents, being small scale manufacturer, was not paying either basic duty or additional basic duty and in these circumstances, they could hardly imagine any National Calamity Contingent Duty being payable by them. In these circumstances, Commissioner (Appeals) has accepted the plea of bona fide belief and set aside the penalty. I do not find any reason to interfere with the finding of the learned Commissioner (Appeals) as it is not the case of the Revenue that the respondents were paying any duty. They were also not registered with the Department. The Appeal of the Revenue is thus rejected. (Pronounced in the Court)
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2005 (2) TMI 663
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... e in not filing the declaration before receipt of the capital goods. In view of these facts, the Modvat credit in respect of these capital goods cannot be denied to the appellants merely because the declaration was filed late in view of the Board rsquo s Circular dated 23-2-99. We, therefore, set aside the impugned order as far as it relates to disallowance of Modvat credit amounting to Rs. 3,91,71,898/- and hold that the appellants are eligible to take the credit of the said amount rdquo . 3. emsp Further, he relied upon the decision in the case of M/s. J.B.M. Tools Ltd., and Ors. v. Commissioner of Central Excise, Pune, reported in 2002 (144) E.L.T. 561 (Tribunal) 2002 (48) RLT 117 (CEGAT-Mum.) . It is observed that the declaration has been filed after expiry of condonable period of 3 months - credit admissible in view of provisions of sub-rule (13) clause (ii) of Rule 57T. 4. emsp Following the aforesaid decisions, this appeal is allowed. (Pronounced in Court on 3-2-2005).
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2005 (2) TMI 662
Refund - Protest - Unjust enrichment - Applicability of ... ... ... ... ..... f filing of the refund application, the appellants were entitled for the refund as refund arose prior to amendment of Rule 9B. Therefore, the appellants are entitled for refund and this position has been upheld by the Supreme Court in the case of CCE, Chennai v. T.V.S. Suzuki Ltd. (supra) where the Supreme Court has observed that merely because the departmental authorities took a long time to process the application for refund, the right of the appellant does not get defeated by the subsequent amendment made in Rule 9B(5). In the present case, since the department itself took a long time in finalisation of the provisional assessment but the duty paid extra was determined much before amendment. Therefore, the refund should be allowed to the appellants and the amendment, made in the provisions to Rule 9B(5) will not be applicable in the present case. Accordingly, the appeal is allowed with consequential relief, if any, to the appellants. (Pronounced and dictated in open Court).
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2005 (2) TMI 661
... ... ... ... ..... 6-5-2003. During this period as the factory was running and appellant had a scarcity of the space, they removed sugar outside the factory without payment of duty. Thereafter sugar was cleared on payment of duty. This fact was not disputed by the revenue and some sugar is still lying in the godown and contention of the appellant is that sugar will be cleared on payment of appropriate duty. As the duty is being demanded in respect of sugar which was subsequently cleared on payment of duty and some quantity of sugar is still lying in the godown, therefore, the second time duty demand of duty on the same goods is not sustainable and set aside. As the appellant applied for necessary clearance and the revenue kept the request pending for 1 frac12 year, therefore, on account of non-action on part of revenue, the appellant cannot be penalised. In these circumstances, the imposition of penalty is also not sustainable and set aside. Appeal is allowed. Order dictated in the open Court.
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2005 (2) TMI 660
Cenvat/Modvat - Inputs ... ... ... ... ..... product from the purview of the inputs. The process of manufacture as explained by the Appellants clearly indicates that the evaporation boat is used as an appliance in the process of manufacture and as such stands excluded from the purview of the definition of the inputs at the material time. This was the view upheld by the Tribunal in the decision relied upon by the Commissioner in the impugned Order. The Larger Bench of the Tribunal has also held in the case of Melton India Ltd. v. CCE, Meerut ndash 2000 (121) E.L.T. 701 (T-LB) that the ceramic evaporation boat used in the manufacture of metallised plastic films are appliances and cannot be treated as inputs and thus are not entitled for the benefit of Modvat credit as the inputs under Rule 57 of the Central Excise Rules. The decisions relied upon by the learned Advocate delivered by the Single Member Bench of the Tribunal. Thus following the decision of the Larger Bench I reject the appeal. (Pronounced in the open Court).
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2005 (2) TMI 659
Stay/Dispensation of pre-deposit - Demand - Clandestine removal ... ... ... ... ..... e of M/s. Oudh Sugar Mills Ltd. v. Union of India - 1978 (2) E.L.T. (J 172) (S.C.). 3. emsp The appellants have subsequently explained in their reply that even though the supplies have been made by the oil companies in their name, the oil had actually been used and paid for by third parties. The particulars of such payments were in fact mentioned on the invoices seized from the appellants rsquo premises. 4. emsp The records seized/procured from the transporter rsquo s premises are not credible one. 5. emsp The impugned order is liable to set aside on the ground of violation of principles of natural justice inasmuch as the order traversed behind the Show Cause Notice. 6. emsp Having considered the submissions made and as there exists prima facie case in favour of the appellants, full waiver of pre-deposit of the duty amount and penalty is hereby granted and its recovery is stayed. 7. emsp Early hearing is fixed on 14-3-2005. Order accordingly. (Pronounced in Court on 2-2-2005)
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2005 (2) TMI 658
Stay/Dispensation of pre-deposit ... ... ... ... ..... f the provisional anti-dumping duty i.e. 2-5-2002 and shall be paid in Indian currency. He contended that thus the anti-dumping duty on the impugned goods is leviable since 2-5-2002 and as the goods were imported after 2-5-2002, the Applicants are liable to pay anti-dumping duty. 4.We have considered the submissions of both the sides. The issue relates to the question as to whether anti-dumping duty can be charged in respect of the goods which were imported during the period, no notification imposing anti-dumping duty was in force. It is not the case of the Revenue that the provisional notification imposing anti-dumping duties vide Notification dated 2-5-2002 has been extended. In view of these facts, the Applicants have made out a strong prima facie case for waiver of pre-deposit of entire amount of duty. We therefore, stay the recovery of the entire amount of duty during the pendency of the Appeal, which is posted for regular hearing on 18-3-2005. (Pronounced in the Court).
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2005 (2) TMI 657
Confiscation - Accountal of goods ... ... ... ... ..... attempt to do so. It is an admitted position that the containers and cartons were being packed when the seizure of the said goods were effected. 2. emsp It is well settled law that confiscation of goods for non entry in the RG-I shall not be routinely upheld. Only when there is corroboration of intent to remove such goods, so not entered, confiscation liability to arise. We also find that in the case of Cure Worth (India) Ltd. - 2000 (124) E.L.T. 263 (Tri.) (para 4) such confiscation was not upheld. Following this decision, the present confiscation orders are required to be set aside and appeal allowed with consequential benefit. 3. emsp Appeal allowed in above terms. (Pronounced in Court)
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2005 (2) TMI 656
SSI Exemption - Notification No. 1/93-C.E. ... ... ... ... ..... ICH-SR and ZIFF-SR belong to them in view of the assignment. They have rightly relied on the decisions of the Apex Court in the matter. As regards the product DOXYREK-DR, Revenue rsquo s objection is that the house mark appears in the carton. This objection is also not having any force in view of the decision of the Apex Court in the case of Astra Pharmaceuticals (P) Ltd. (supra). Though Revenue has come in appeal against the Orders-in-Appeal, in view of the decision of the Tribunal in the case of Beco Chemicals (P) Ltd. case (supra), no purpose will be served by remanding the matter to the Commissioner (Appeals). In the light of the facts available on records, the respondents are the owners of the brand names and Revenue has no case for denying the exemption to them. In view of our above findings, accepting the contention of the Respondents, we dismiss the Revenue rsquo s appeals. (Operative portion of the order has been pronounced in the open Court on conclusion of hearing)
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2005 (2) TMI 655
Demand - Limitation ... ... ... ... ..... the months January 1986 and February 1986 covered by the same notice dated 28-7-1986, they are within time and there is no challenge to these demands for the period on merits, hence the demands for these two months are upheld. However, duty payable for these two months will have to be recomputed and for this purpose, the matter is sent back to the original authority for recomputation. 4. emsp As regards show cause notice at Sr. No. 9 which is not covered by Section 11AC notification, we accept the plea of the appellants that the demand is barred by limitation in view of the practice prevalent during the period for the same reason which we have given for holding that the demands for the months of May 1985 to December 1985 are barred by limitation. 5. emsp The appeal is disposed of as above by setting aside certain demands as set out above and remanding the case for recomputation of duty for the months of January and February 1986. The penalty is set aside. (Dictated in Court)
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2005 (2) TMI 654
Rate of duty - Demand ... ... ... ... ..... a place of removal. It is contended that if the assessable value is the price prevailing at the Depot at the time of removal, the rate of duty also is the rate applicable at the time of removal from the Depot. 5. emsp If logic of the lower authorities is taken too far someone may claim refund of excess duty paid at the time of clearance from the factory gate on the ground that the excise duty has been brought down when the goods are sold from the depots. What is good for valuation under Section 4 of the Act is not good enough for the purpose of determination of rate of duty. The goods in the present case already suffered duty and therefore the question of levying duty at the new rate on the specious plea that such duty paid goods are removed from the depots subsequent to the date on which new rates have come into force. In view of the above findings, the appeal is allowed. (Operative portion of the order has been pronounced in the Court on completion of hearing on 23-2-2005)
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2005 (2) TMI 653
Valuation - Anti-dumping duty ... ... ... ... ..... ade from Korea Kumho Petrochemicals Co. Ltd. as fixed duty. rdquo We find that the interpretation given by ld. Commissioner (Appeals) to the Explanation to Notification No. 16/99/Notification No. 44/99 is not compatible with the view taken by the Anti-Dumping Bench of the Tribunal in the case of Puneet Resins (Supra). According to the decision in Puneet Resins (Supra), where the imported goods are exempt from payment of Customs duty under any Notification, such duty is not liable to be added to the assessable value of the goods for the purpose of arriving at its landed value. In other words, only those duties which are actually collected are to be included in the computation of landed value. This is the Department rsquo s view in these appeals and we uphold the same by following Puneet Resins (Supra). Therefore, the impugned orders are not sustainable and the same are set aside. The appeals are allowed. (Operative portion of the order was pronounced in open Court on 8-2-2005)
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