Advanced Search Options
Case Laws
Showing 301 to 320 of 772 Records
-
2005 (2) TMI 612
Clandestine manufacture and removal - Evidence ... ... ... ... ..... re and removal have been retracted after a very long time. The adjudicating authority without critical examination has accepted the retractions. This action does not appear to be correct. Adjudicating authority should have given opportunity to the Revenue to present their case also. This also has not been done. Therefore, without expressing any view on the merits of the case, we are of the considered opinion that the case is required to be remanded to the original authority for de novo adjudication. Original authority shall give notice to all the witnesses for appearing before him for cross-examination by the appellants. He shall also give opportunity to the Revenue to counter the points raised by the appellants. He should also examine the acceptability or otherwise of the retractions in the light of the various decided case laws. The adjudicating authority shall keep all the above points in mind while deciding the issue de novo. With these observations, we remand the matter.
-
2005 (2) TMI 611
Exemption to goods captively consumed ... ... ... ... ..... All goods falling within the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) 2. Fabrics of cotton or man-made fibres, whether or not processed 58.01, 58.02, 58.06 (Other than goods falling within sub-heading No. 5806.20) 60.01 or 60.02 (other than goods falling within sub-heading No. 6002.10 All goods falling within the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986). rdquo The Commissioner in the impugned order has held that the goods manufactured by the appellants are falling under sub-heading 5806.39 of the Central Excise Tariff Act which is accepted by them. In these circumstances, as the Notification No. 22/96-C.E., provides exemption to the goods captively consumed in the manufacture of final products falling under sub-heading 5806.39 of the CETA. The impugned order vide which the duty is confirmed and penalty imposed is set aside and the appeals are allowed. The appellants are entitled to the consequential relief, if any, in accordance with law.
-
2005 (2) TMI 610
Refund - Unjust enrichment ... ... ... ... ..... oneously for a short period of three months. The appellant rsquo s price to the buyers rsquo remained the same before the levy, during the levy and after the levy. The appellant is a non-profit organisation and when it noticed that the lens in question was attracting Central Excise duty, it promptly wrote to its buyers vide letter dated 5-3-2002 that the price is being reduced so as to absorb the Excise duty. This letter of the appellant rsquo s clearly bears out their contention that duty liability has not been passed on. The revenue has also not placed any material revealing a contrary position. Thus, it is clear in the present case that the duty liability has not been passed on to the buyers. The fact of separately indicating duty in their invoice is no confirmation that duty passed on. Apparently this was done only to indicate the components of the total prices. 4. emsp In view of the findings stated above, the appeal is allowed with consequential relief to the appellant.
-
2005 (2) TMI 609
Covers - Coloured covers for cellular phones ... ... ... ... ..... cards are classifiable under Heading 8542.12 of the Tariff and not under 85.43 under which the Revenue has classified the same. Heading 8542.12 applies to cards incorporating an electronic integrated circuit ( ldquo smart rdquo card). When the Customs Tariff was changed to eight digits from six digits, ldquo Cards incorporating an electronic integrated circuit ( ldquo smart rdquo card) has been classified under Heading 8542.10 and the sub-headings have been made as under 8542.10 10 hellip .. Sim Cards 8542.10 20 hellip .. Memory cards 8542.10 90 hellip .. Other It is thus apparent that the main heading ldquo smart rdquo cards has been sub-divided into SIM cards, memory cards and others which goes to show that memory cards were always falling within the description ldquo Cards incorporating an electronic integrated circuit ( ldquo smart rdquo card). We, therefore, hold that the memory cards are classifiable under Heading 8542.12 only. The appeal is disposed of in these terms.
-
2005 (2) TMI 608
Classifiaction ... ... ... ... ..... re all of standard format. There is a face plate on the front of each module with display elements, with controls and access to front connectors. The PCBs of the modules are of multi layer design and the components with which they are equipped are mainly surface mounted devices. The Main Switching Center is a machine with the provision for expansion. The modules are inserted as essential parts to attain a particular capacity. The modules on their own do not have any independent function and they cannot be dis-assembled further. Even though the numbers of modules are variable depending on capacity, each module remains as a part of the main machine, i.e. Main Switching Center. In view of the above, the Original Authority rsquo s finding that the modules cannot be considered as apparatus is correct. Hence there is no infirmity in the Order-in-Appeal confirming the Original order. Therefore the appeal of the Revenue is devoid of any merit. Hence we reject Revenue rsquo s appeals.
-
2005 (2) TMI 607
Classifiaction ... ... ... ... ..... ies orders have been arrived at after appreciating Board rsquo s instructions vide F. No. 172/30/89/CX-4 as also the rival contentions campaigned by Revenue i.e. 8415.83. The order relies upon the concept of an air-conditioning machine in terms of tariff description Heading 8415 to be one which contained (i) motor driven fan, (ii) elements for changing temperature as per the Tribunal rsquo s decision in the case of Universal Commercial Corporation - 1994 (69) E.L.T. 150 as also the lower authorities order is based on HSN Notes and their interpretation. The detailed order as arrived at cannot be found fault with based on false averments made in this appeal that the entity under import in the catalogue is not stated to be a lsquo heat exchanger rsquo . (b) After perusal of the grounds, we find no material to induce us to upset the classification arrived at by the lower authorities to hold the product as a heat exchanger. 3. emsp Revenue rsquo s appeal consequently is dismissed.
-
2005 (2) TMI 606
Stay of operation of impugned order - Refund ... ... ... ... ..... rcial invoices along with Central Excise invoices and the said commercial invoices indicated composite prices. The composite price at the factory gate and that charged from the depot is the same. Therefore the conclusion drawn by the Commissioner that in the case of composite sales price charged by the assessee from his depot, the incidence of duty was not passed on to the customers is not correct. 4. emsp Heard both sides. 5. emsp The burden to prove that incidence of duty was not passed on to the Customer is on the person who claims the refund. Such burden is not discharged by merely stating that the prices of goods remained constant before and after payment of excess duty. Prima facie it appears that the Commissioner was wrong in holding that the respondent herein has discharged the burden cast on him. We find that the department has made out a strong prima facie case in its favour we accordingly stay the operation of the impugned order during the pendency of this appeals.
-
2005 (2) TMI 605
Export - Penalty ... ... ... ... ..... o the learned Counsel, in view of these facts and circumstances, imposition of penalty was not justified at all. 2. emsp The export of the goods was under document approved by Central Excise authorities. It is not fair or proper on the part of the authorities to subsequently take a view that the appellant has not followed the correct procedure. That apart, the instructions relied upon in the order came to be issued subsequent to the export. Export of the goods is not being doubted. In these circumstances, the imposition of penalty is grossly unwarranted. It is further to be noticed that Rule 25 relates to confiscation and penalty and the quantity of penalty provided is ldquo not exceeding the duty of the excise payable on the goods rdquo . In the present case, no duty is due. Therefore, no penalty could be imposed. 3. emsp In view of what is stated above, the appeal is allowed after setting aside the impugned order. Appellant shall be entitled to consequential relief, if any.
-
2005 (2) TMI 604
Classification - Demand - Limitation ... ... ... ... ..... entage of pulp is to be calculated as per the Trade notice and as per the above decision of the Tribunal after deducting the moisture contents and the contents additives. The appellants also brought to our notice that the ISI specification regarding Kraft paper, which shows that Kraft paper, consists of 10 moisture. We also take note of the fact that no sample was taken for testing by the Chemical Examiner which was the safest method to determine the composition of the product. 10. emsp In respect of the contention of the appellants that the demand is time bar, we find that appellants were regularly filing the classification list which was duly approved and also maintaining record as Mixing register, Digester register as per Trade notice. Therefore, no suppression can be alleged against the appellants. In view of the above discussion, we find merit in the arguments of the appellants, on merit as well as on limitation. The impugned order is set aside and the appeal is allowed.
-
2005 (2) TMI 603
Adjudication - Re-adjudication on remand ... ... ... ... ..... ing but under the impugned order, the Commissioner (Appeals) had again confirmed the demand without making available any such details. Learned Counsel has also submitted that the findings of the original authority about the defects of the stock taking clearly brings out the defective nature of the stock taking and no demand could be made on such unreliable estimation of stock. 4. emsp I have heard the learned DR and perused the records. It is clear from the record that the impugned order has been passed without complying with the direction of the Tribunal. For that reason alone, the impugned order is required to be quashed. That apart, the quantification carried out at the time of stock taking was clearly not reliable in view of the detects in the method pointed out by the Additional Commissioner in the Order-in-Original. There was no justification to interfere with that Order. 5. emsp In view of what is stated above, the impugned order is set aside and the appeal is allowed.
-
2005 (2) TMI 602
... ... ... ... ..... different. Moreover, provisions of Rule 173Q at the relevant time did not provide for any exception in cases where duty has been paid immediately on receipt of show cause notice. I note that Hon ble Supreme Court of India in the case M/s Gujarat Travancore Agency v. CIT cited 1989 (42) E.L.T. 350 (S.C.) has held that in the absence of any indication in the language of the statute of the need to establish mens rea, the default in complying with the requirement of statute is sufficient for imposition of penalty. rdquo In the first of the two paras above, the Commissioner (Appeals) has clearly held to the effect that the payment of lesser amounts resulted from price fluctuation and communication gap between the depots and the factory. He also noted that, on account of these reasons, in some cases, the appellants have also paid duty at higher value. These findings do not justify imposition of penalties. The appeals are allowed with consequential relief, if any, to the appellants.
-
2005 (2) TMI 601
Penalty - Smuggling - Evidence - Statement, confessional statement ... ... ... ... ..... er occasion. His retraction at a much later day is of no consequence. Similarly, the appellant has admitted that he received gold weighing 3 kgs from Shri Getachew in July 1995. The evidentiary value of a statement, which has been retracted, has to be weighed in the light of circumstances of each case. Here is a case of a foreigner specifically mentioning a particular name, recognizing the family members of the said person and knowing the address and telephone number of the person to whom he had handed over the gold smuggled into the city. There is no reason to disbelieve the version given by him. The appellant also admitted that he received the gold weighing 3 kgs from the foreigner. I now consider the plea that the penalty of Rs. 2 lakhs is excessive. Considering the value of the gold and the circumstances of the case, I am inclined to reduce the penalty to Rs. 1 lakh. 8. emsp The appeal is partly allowed. The penalty imposed under Section 112(b) is reduced to Rs. one lakh.
-
2005 (2) TMI 600
... ... ... ... ..... RG 23A Part II Col. V., copies of the sale invoices as well as in the triplicate copies of the buyer/transporter. After they were caught from the copies of their sale invoices, they no doubt deposited the entire duty amount, but keeping in view the facts and circumstances of the case, this deposit cannot be said to be voluntary by them. It was made by them when they were confronted with tampering of record/sale invoices. Therefore, their conduct did not warrant the setting aside of penalty on them. The ratio of law laid down in the above referred cases relied upon by the learned Commissioner (Appeals) could not be invoked as the facts in those cases were, not the same as in the present case. Therefore, the impugned order of the Commissioner (Appeals) setting aside, the penalty on the appellants, cannot be sustained and is set aside. The order-in-original of the adjudicating authority is restored in respect of penalty. The appeal of the Revenue accordingly stands disposed of.
-
2005 (2) TMI 599
Accountal of goods - Confiscation and penalty ... ... ... ... ..... moval involving evasion of excise duty is to be accepted. Since the raw materials are issued without any distinction as to which scrap or ingot it was, excess and shortage are to be adjusted against one another. With regard to the excess stock, the learned SDR has emphasized that since there was no issue of raw material from 17th, the last day for which accounts have been written, the appellant rsquo s explanation that the quantity was the production of 22-10-1997 could not be accepted. This objection cannot be accepted. The fact that accounts were not written after 17th, is no proof that there was no issue of raw materials or production after that day. I am of the view that the dispute is not of much significance inasmuch as the excess quantity in one item corresponds to the shortage in another and there is no allegation of any clandestine production or removal. The appeal is allowed after setting aside the impugned order, with consequential relief, if any, to the appellant.
-
2005 (2) TMI 598
Demand - Shortage of goods - Molasses ... ... ... ... ..... al inasmuch as the appellant paid duty on the entire clearances of molasses at specific rate. 3. emsp As against above submissions on behalf of the appellant, learned JDR has pointed out that the calculation error has not been raised at the time of stock taking. It is also pointed out that the appellant rsquo s representative had signed the quantity worked out at the time of stock taking. 4. emsp The appellant rsquo s explanation merits acceptance. The calibration of these tanks is accepted by the Weights and Measures authorities. The depth of the molasses in the tank is not being disputed. The appellant rsquo s contention based on the calibration chart has to be accepted. That apart, the shortage works out to only 1.62 , even including the higher quantity. This is well within the loss stipulated in Board Circular. The difference appears to be entirely on account of natural causes. The demand of duty is not justified. Appeal is allowed, after setting aside the impugned order.
-
2005 (2) TMI 597
Classification of goods ... ... ... ... ..... etailed in the impugned order, the mode and process of manufacture, characteristics and percentages of the raw materials used i.e. siliceous earths, alumina, etc. and the end use, the Commissioner (Appeals) has rightly/correctly arrived at the conclusion that the acid resistant clay bricks produced by the respondents could not be classified as fire clay bricks under Chapter heading 6902 of the CETA. This conclusion also finds corroboration from the comparative study of this chapter heading and the corresponding HSN notes. 5. emsp Mere wrong classification of the goods in question by the respondents at one stage, did not operate as estoppel/res judicata against them for claiming the classification under the correct tariff heading/sub-heading of the CETA. The impugned orders of the learned Commissioner (Appeals) in this regard in all the appeals are perfectly valid and we do not find any illegality in the same and as such, are affirmed. The appeals of the Revenue are dismissed.
-
2005 (2) TMI 596
Penalty - Clearance of goods against inadequate balance in PLA ... ... ... ... ..... eir Cenvat Credit account and as such there was no intention to remove the goods without having sufficient balance in their PLA. The Adjudicating Authority has also treated the present matter as ldquo a case of clearance against inadequate balance, rather than clearance without payment of duty. rdquo The learned Advocate has also emphasized the fact that when the factual position was brought to their notice, they have even deposited the interest amounting to more than Rs. 70 lakhs even before the issuance of show cause notice which reveals their bona fide intention. In view of all the facts and circumstances of the case coupled with the fact that there was balance in the Appellants rsquo Cenvat Credit Account and they have paid the interest leviable on account of delay caused in transferring the money to the Government Account by their Bank, it is not a case fit for imposition of penalty on the Appellants. We, therefore, set aside the penalties imposed on both the Appellants.
-
2005 (2) TMI 595
Confiscation of goods meant for export ... ... ... ... ..... able to file any documents in rebuttal. From their show-cause notice, it is clear that the Customs officers themselves have admitted the possession of the goods of the appellants. 7. emsp The appellants had placed on record the Bills and invoices showing purchase of goods. No enquiry was conducted by the investigating officer from the person/shop owner who had sold the goods to the appellants under Bills and Invoices. The view of adjudicating authority is based on assumption and presumption and not based on any concrete evidence. In the absence of proper investigation, no reliance can be placed on the seizure memo prepared by the BSF personnels. In the circumstances, the goods in question cannot be confiscated under the provisions of Section 113(b), (d) of the Customs Act, 1962 and, therefore, the personal penalty cannot be imposed on the appellants. 8. emsp In view of the above, I set aside the impugned order and allow the appeal with consequential relief to the appellants.
-
2005 (2) TMI 594
Paper and paperboards ... ... ... ... ..... he present appeal, learned Counsel for the appellants submitted that the view taken by the lower authorities was contrary to the Board rsquo s Circular F. No. 341/15/2000-TRU, dated 21-7-2000 which interpreted Notification No. 6/2000-C.E., and clarified that the clearances of paper exempted from payment of duty were not includible in the computation of first clearance of 210 MTs of paper for the purpose of assessment of duty. 4. emsp Ld. SDR reiterated the findings recorded by the Commissioner (Appeals). We find that the Board rsquo s circular cited by learned Counsel was overlooked by both the lower authorities while interpreting the provisions of Notification No. 6/2000-C.E., ibld. In terms of the circular, which is binding on the Revenue, the appellants were entitled to exclude the clearances of news print from the computation of the first clearance of 210 MTs of paper for the purpose of assessment of duty. We, therefore, set aside the impugned order and allow this appeal.
-
2005 (2) TMI 593
Demand - Customs - Warehoused goods ... ... ... ... ..... Appeals) in the two orders passed within a period of two months has given findings diametrically opposed to each other. A classic case of blowing hot and cold indeed. There is no evidence indicating that the appellants have deliberately not cleared the goods or re-exported the same. In view of the obsolescence in information technology and the vicissitudes of business environment, the appellant could not export or clear the goods bonded in time. Therefore, the request of the appellant requires a sympathetic consideration. In any case, as the department had not taken action on the request for re-export before demanding duty after directing the appellants to pay the penalty, in the interest of justice and fairplay, we have no other option but to set aside the OIA. We direct that the Original Authority shall take necessary action on the request of the appellant for re-export of the goods in accordance with law. The matter is remanded to the Original Authority in the above terms.
............
|