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Showing 261 to 280 of 772 Records
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2005 (2) TMI 652
Valuation - Petroleum products - Demand - Limitation ... ... ... ... ..... acted his statement subsequently, the finding regarding weight is required to be accepted. Learned DR also points out that since the goods were handed over to the party, a subsequent verification was not possible. 8. emsp One thing is clear, that weight arrived at is purely notional. Weight of an item, particularly M.S. Ingot, is capable of being correctly determined by weighment. Further, even if weight was to computed based on the average weight of an ingot, the averaging had to be done by an acceptable method. Going by a statement, and not caring to verify it, even after the appellant had stated a different position, is not justifiable. Therefore, the determined weight is not at all reliable. An adjudication done on the basis of such an unreliable determination of quantity of goods in stock cannot be upheld. Therefore, the impugned order is set aside and the appeal is allowed, with consequential relief, if any, to the appellant. (Pronounced and dictated in the open Court).
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2005 (2) TMI 651
Foreign consulting engineer ... ... ... ... ..... Lavalin Personnel rsquo . Such an office cannot be held to be the office of K.S.E.B. just to demand service tax from the appellant after 16-8-2002. The demand should have been made on SNC Lavalin, the service provider who has an office in India instead of on K.S.E.B. holding that the foreign service provider has no office in India. 7. emsp Thus we observe that prior to 16-8-2002, service tax cannot be demanded from the appellant as he is not held to be an agent/authorised person of foreign service provider and after 16-8-2002 amendment, the appellant is not required to pay the tax as the foreign service provider has his office here in India. Only in cases where the service provider has no office in India/has no agent, etc., a service receiver is required to discharge service tax liability. 8. emsp The appeal is allowed. The order of the Commissioner (Appeals) is set aside. (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 650
Classifiaction - Words and Phrases ... ... ... ... ..... he main bag without breaking sterility and ensures that blood cells are not damaged while sealing. Hand Sealer also help in stripping the donor tubes of fresh blood without breaking sterlity. The same donor tubes then is filled with anticoagulant blood. It is a very special tool meant only for the above purpose. It has no other use due to its specific design. It is made from medical grade SS and follows Archimedean principles of leverage, hence rear end of it looks like plier for easy fitting in one hand and for proper leverage and the useful end is meant only for sealing of donor tubes of blood bags. In view of the above, we accept the appellant rsquo s claim of classification of this item as medical equipment under Chapter 90.18 and set aside the classification under CETA Sub-heading 8203.00 as arrived at by the lower authority. 8. emsp The appeal is thus partly allowed as above. (Operative portion of the order has been pronounced in the open Court on conclusion of hearing.
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2005 (2) TMI 649
Exemption from duty different from remission of duty ... ... ... ... ..... bunal has held that non-duty paid goods are those goods, which have clandestinely removed without payment of duty. When the goods are cleared on following the due procedure as prescribed by law, they would not become non-duty paid merely by reason of the fact that they were holding exemption from duty or assessable to Nil rate of duty. 9. emsp In the instant case, it is found that the clearances are as per Chapter X procedure. No duty has been paid on the DECC due to remission provided under Chapter X, then it cannot be a case of exemption or assessable to Nil rate of duty. 10. emsp The findings of the Commissioner (Appeals) that the clearance under Chapter X procedure is remission of duty, which cannot be equated with the exemption from duty is the view that cannot found fault with. The citations relied upon by the Commissioner (Appeals) are relevant to the instant case. Therefore, we find no merits in the Revenue appeal, hence the appeal is dismissed. (Pronounced in Court).
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2005 (2) TMI 648
... ... ... ... ..... we find that the citations referred to by the learned SDR in the case of Linc Pen and Plastics Ltd. is clearly distinguishable as it was an admitted position that in terms of EPCG Scheme, the containers were required to have been imported with a licence. While in the present case, the judgment of CC, Mumbai v. Ispat Profiles (India) Ltd. clearly applies. The Tribunal has clearly held that duty is not chargeable on containers when sale agreement indicates their value included in the value of the goods imported. In the present case, in terms of the correspondence at pgs. 19 and 20 of paper book, the supplier had already collected the value of the old and used containers. Therefore, respectfully following the ratio of the Tribunal ruling rendered in the case of CC, Mumbai v. Ispat Profiles (India) Ltd., the impugned order is set aside and the appeal allowed with consequential relief, if any. (Operative portion of this Order was pronounced in open court on conclusion of hearing)
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2005 (2) TMI 647
SSI Exemption - Brand name ... ... ... ... ..... agreement from the company M/s. Vikshara Trading Company for using the brand name on their goods also. No ownership rights in respect of the brand name, never stood transferred to the respondents, for the using the same on their goods. The owner of the brand name M/s. CMC is not entitled to the availment of the SSI exemption. Therefore, the respondents cannot claim the benefit of that notification in terms of Para 7 of the notification. 5. emsp The manufacture of different type of goods by the owner of the brand name, than what are being manufactured by the respondents, is of no consequence in view of the latest judgment of the Apex Court in the case of CC, Trichy v. Rukmani Pakkwell (supra) wherein it has been observed that in such a situation also, the SSI exemption will not be available. 6. emsp In view of the discussion made above, the impugned order under appeal cannot be sustained and is set aside. The appeal of the Revenue is allowed with consequential relief, if any.
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2005 (2) TMI 646
EXIM - Export goods - Inter-unit transfer - Identical goods ... ... ... ... ..... Pvt. Ltd. v. CCE - 2001 (128) E.L.T. 490 (Tri. - Cal.) wherein it is held that the value of deemed exports is not to be included while computing the value of clearances under Notification 1/93-C.E., dated 28-2-1993. 5. emsp The learned SDR reiterated the findings of the lower authorities. 6. emsp After going through the rival submissions, we are of the considered opinion that the goods supplied by the appellants to DTA are entitled for the benefit of Notification No. 02/95 in view of the Board rsquo s clarification regarding the term lsquo identical goods rsquo . The goods supplied to EOUs should be considered as exported on account of the deeming provision in Para 9.10 of the EXIM Policy. Under these circumstances, the demand of duty on the goods supplied to DTA by denying the benefit of Notification 02/95 is incorrect. In the result, we allow the appeal with consequential relief, if any. (Operative portion of this Order was pronounced in open court on conclusion of hearing)
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2005 (2) TMI 645
... ... ... ... ..... s House practice of loading the price of imported goods without reference to quantity, place and time of import etc. has to be rejected when it is contrary to statutory provisions. It was held by the Apex Court in the case of Eicher Tractors Ltd. v. Commissioner of Central Excise, Mumbai 2000 (122) E.L.T. 321 (S.C.) that, before proceeding to determine the value of imported goods under Rules 5 to 8 sequentially, the transaction value declared by the importer had to be discarded on valid grounds. In the instant case, no reason whatsoever was cited by the Revenue to reject the transaction value of the scrap imported by the respondents. Therefore, the transaction value had to be accepted under Rule 4(1) of the Customs Valuation Rules read with Section 14 of the Customs Act as held by the lower appellate authority. There is no reason to interfere with the impugned orders. 4. emsp The appeals are dismissed. (Operative portion of the Order was pronounced in open Court on 10-2-2005)
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2005 (2) TMI 644
Demand - Cenvat/Modvat - Reversal of ... ... ... ... ..... s regard. 8. emsp The contention of the learned Counsel that the goods had been now brought back by the appellants to the factory and as such they are entitled to the Modvat credit, cannot be accepted as their re-entitlement of the credit on that score, is not an issue before us. The appellants may seek this relief by making proper prayer before the competent authority who will be at liberty to decide it, as per law. But, in the present appeal, this aspect cannot be taken into account for setting aside the duty demand against them. However, keeping in view the facts and circumstances of the case, the penalty imposed on the appellants deserves to be reduced and the same is reduced to Rs. 1 lakh (rupee one lakh only). 9. emsp In view of the discussion made above, except for the modification in the penalty amount, the impugned order is upheld. The appeal of the appellants stands disposed of accordingly. (Operative part of this order was pronounced in the open Court on 28-2-2005)
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2005 (2) TMI 643
Valuation - Related person - Demand - Limitation ... ... ... ... ..... tion 11AC cannot be sustained at this stage. The adjudicating authority after determining the duty amount can impose a penalty under Section 11AC. In so far as the penalty on the Managing Director is concerned, the adjudicating authority may take a fresh view on this as well. The appeals are allowed by way of remand in the following terms - (a) The transactions between the appellants and M/s. Devi Enterprises are held to be related party transactions. (b) The price at which the goods are sold by the distributor (related party) is confirmed as basis for assessment. (c) Larger period of limitation is invocable in this case. (d) Penalty under Section 11AC and Rule 209A are set aside in view of the fact that the duty has to be re-determined as directed by us. (e) The price at which the distributor has sold the goods be taken as cum-duty price and permissible deduction may be given from them. 6. emsp The appeals are allowed by way of remand to determine the correct duty liability.
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2005 (2) TMI 642
Clearing and forwarding agents vis-a-vis del credere agents ... ... ... ... ..... redere Agent. He submits that the ratio of this judgment clearly applies to the facts of the case and prays for allowing the appeal. 2. emsp Heard learned JDR who submits that the Department has not accepted the order. However, he reiterates the departmental view. 3. emsp On a careful consideration, we find that the appellants had produced evidence to show that they are not C and F Agents but are Del Credere Agents. The Commissioner has considered the Del Credere Agents also to be C and F Agent. However, the Tribunal, after due consideration of the definition of Del Credere has categorically that they cannot be clubbed along with C and F Agents and no Service Tax is leviable on them as held in the case of M/s. Raja Rajeshwari International Polymers (P) Ltd., by Final Order No. 126/2005, dated 20-1-2005 2005 (180) E.L.T. 448 (Tri.) . Respectfully following the ratio of the said order, the appeal is allowed by setting aside the impugned order, with consequential relief, if any.
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2005 (2) TMI 641
Appeal - Cross appeals ... ... ... ... ..... nwhile the Revenue rsquo s appeal against the Additional Commissioner rsquo s order came up for consideration before the Commissioner (Appeals). He held that the appeal is infructuous because the order of the Additional Commissioner was already set aside by his predecessor while dealing with the assessee rsquo s appeal against the same order. 3. emsp Heard both sides. 4. emsp The Commissioner erred in holding that the Revenue rsquo s appeal before him as infructuous. The Revenue had a grouse against the orders of the Additional Commissioner just as the assessee had for different reasons and that was why preferred an appeal. He is bound to deal with the Revenue rsquo s appeal just as he dealt with the assessee rsquo s appeal on merits. He did not do so. 5. emsp The order of the Commissioner (Appeals) is set aside and the matter is remanded for fresh consideration on merits after intimating the date of hearing to both the parties. 6. emsp The appeal is allowed by way of remand.
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2005 (2) TMI 640
Demand - Handicraft items, wooden handicraft items ... ... ... ... ..... ntly made by hand even though some machinery is also used, and have visual appeal in the nature of ornamentation or inlay work or some similar work having artistic touch. Before the Additional Commissioner, the assessee produced the certificate issued by Kairali Depot, Kozhikode, to the effect that handicrafts are manufactured in the unit but such certificate has been discarded as not relied for the reason that it was not issued by a statutory authority. The certificate of Kairali has been accepted by the Tribunal in Final Order No. 1652/2003 dated 4-12-2003 to hold that items manufactured and cleared by the respondents during another period are handicrafts. Therefore, the benefit of exemption in terms of Notification No. 76/86-C.E., dated 10-2-1986 for handicraft items is admissible to the disputed items. In this view of the matter, duty demand and penalty cannot be sustained. 3. emsp We, therefore, see no merit in the Revenue rsquo s appeal and accordingly dismiss the same.
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2005 (2) TMI 639
Valuation - Transaction value - Rejection of - Confiscation ... ... ... ... ..... unal in the case of Kishandas and Sons Sources India Impex P. Ltd. and in the case of Leela Dhar Maheswari v. CCE. The burden to prove to show the goods were undervalued is on the Revenue, which has not been discharged in the present case, and, therefore, the Supreme Court judgment rendered in the case of CC, Bombay v. Nippon Bearings (P) Ltd. (cited supra), also comes to the support of the appellants. We are not in agreement with the procedure adopted by the Revenue to enhance the valuation on the basis of the prices shown by M/s. HMT, Bangalore who have not imported similar goods from the same supplier and at the same time and place. There is no evidence to show that there is undervaluation in the matter and goods imported during the earlier occasion is liable for confiscation also. Therefore, both the appeals are allowed by setting aside the impugned order which is not legal and proper. (Operative portion of this Order was pronounced in open Court on conclusion of hearing)
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2005 (2) TMI 638
Medicine vis-a-vis cosmetics ... ... ... ... ..... uestion are identical with the one in which the Apex Court has held that Vajradanti Tooth Paste and Tooth Powder are not Cosmetics and Toilet preparation but are Ayurvedic Patent and Proprietary Medicines as held in the case of CCE Nagpur v. Vicco Laboratories. We also find that the judgment of the Apex Court in the case of Meghdoot Gramodyog Sewa Sansthan v. CCE, Lucknow - 2004 (174) E.L.T. 14 (S.C.) 2004 (65) RLT 665 (S.C.) also applies to the facts of the case, as the Apex Court has clearly noted that Ayurvedic hair oil is classifiable under Chapter heading 3003.30 and not as Cosmetics. It has upheld the earlier judgment rendered in the case of CCE, Calcutta v. Pandit D.P. Sharma - 2003 (154) E.L.T. 324 (S.C.). On our further consideration, we find that the order passed by the Commissioner (Appeals) is not just and proper and the order passed by the AC is legal and requires to be upheld by allowing the appeal. Hence, the appeal is allowed with consequential relief, if any.
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2005 (2) TMI 637
Demand - SSI Exemption - Dummy unit - Confiscation of land, plant, building, machinery ... ... ... ... ..... manufacturer and liable to pay duty. In the light of the Tribunal rsquo s orders in Chaitanya Polypack Inds. v. CCE, Visakhapatnam (Final Order No. 1676/SZB/2004, dated 12-10-2004 2005 (179) E.L.T. 581 (Tri.) and the Supreme Court rsquo s decision in CCE, New Delhi v. Modi Alkalies and Chemicals Ltd. 2004 (171) E.L.T. 155 , we uphold the duty demand. However, duty has to be recalculated after extending the benefit of abatement of duty from price, treating the price as cum duty price, and after extending the benefit of modvat credit on verification of duty paying documents to be produced by the appellants. For the purpose of recomputation of duty, the case is remanded to the original adjudicating authority who should also redetermine penalty after recalculation of duty. Confiscation of seized goods is upheld. Confiscation of land, plant, building, machinery etc. is set aside, as such action is very harsh against the first offender. 5. emsp The appeals are thus partly allowed.
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2005 (2) TMI 636
Interest on delayed refund of pre-deposit ... ... ... ... ..... much as refund of pre-deposit is not covered by Section 11BB, the provisions of Section 11BB as regards interest will also not be applicable to such refund. The appellant, however, brought to my notice the decision of the Madras High Court in the case of CCE v. Calcutta Chemicals Co. Ltd. 2001 (133) E.L.T. 278 (Mad.) and Punjab and Haryana High Court judgments in the case of Kandhari Beverages v. UOI 2002 (144) E.L.T. 15 (P and H). The interest has been granted in both cases by the Hon rsquo ble High Courts by virtue of the writ jurisdiction under Article 226 and on account of the interpretation of Sections 11B and 11BB of the Central Excise Act, 1944. Hence, the provisions of the Act does not contemplate payment of interest on pre-deposit. 3. emsp In view of the fact that no arguments advanced before us to dislodge the above reasoning, we find no reason to interfere with the impugned order and therefore, we uphold the same. The appeals are rejected. (Dictated in open Court)
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2005 (2) TMI 635
Demand - Clandestine manufacture and removal ... ... ... ... ..... the learned DR pointed out that it was not the case. In fact the work sheet was furnished along with the show cause notice. The show cause notice itself contains details as to how the duty has been worked out. In regard to deductions from the sale proceeds to arrive at the assessable value he pointed out that the Department had already given permissible deductions while calculating the duty amount of Rs. 1,65,689/-. He submitted that the appeal is devoid of merits. 5. emsp We have considered the rival contentions. None of the pleas put forward by the learned Advocate has merit. We find that the Department determined the non-levy on the basis of entries made in the diary and by taking the averments of the partner who maintained the diary, into consideration. The other pleas raised by the appellants were adequately met by the learned DR. We accept them. 6. emsp The appeal is rejected. (Operative portion of the order has been pronounced in the Court on conclusion of the hearing)
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2005 (2) TMI 634
Manufacturer - Factory premises - Exemption - Coir mattresses, pillows etc. ... ... ... ... ..... 0) E.L.T. 235 (Tri. - Bang.) , the Tribunal has held that what is relevant for the purpose of Notification 115/75 is that all goods other than those excluded in the notification itself, and manufactured by a factory covered by Coir Industry, are entitled to exemption. The Tribunal has held that the exemption cannot be denied on the ground that the product is not a product of the Coir Industry. Following the ratio of the above order, we answer issue No. 2 also in the affirmative. In view of our finding on the above two issues, i.e. on the merits of the matter, we do not consider it necessary to record any finding on the submission that the major part of the demand is barred by limitation, in view of bona fide belief on the part of Duroflex Ltd. that they were the manufacturers and that they were covered by exemption under Notification 115/75-C.E. in view of the certificate issued by the Coir Board. 5. emsp In the result, the impugned order is set aside and the appeals allowed.
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2005 (2) TMI 633
Refund - Duty paid twice ... ... ... ... ..... the provisions of Rule 173L as the lsquo duplicate for transporter copy rsquo of the invoices under which the goods were originally cleared by the appellants to their sister unit did not accompany the goods when they were returned to them. Since the appellants have intimated the receipt of the goods in their factory by filing necessary D-3 intimations, in our view, they are entitled for the refund provided the claims are within the time limit prescribed under Section 11B of the Central Excise Act, 1944. As the appellants maintained that they have filed the claims on time, we are remanding the matter to the original authority to verify the time bar aspect and decide the issue de novo. Since filing of refund claim within time limit is a statutory obligation, we cannot ignore it for the reason that it was not referred to in the Show Cause Notice. With these observations, we remand the matter to the original authority for a fresh decision. (Pronounced in open Court on 21-2-2005)
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