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Showing 321 to 340 of 772 Records
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2005 (2) TMI 592
Appeal - Limitation - Delay of 24 days in filing appeal ... ... ... ... ..... ice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. (v) There is no presumption that delay is occasional deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. (vi) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice oriented approach from this perspective, delay in institution of appeals must be condoned. rdquo Keeping the above principles laid down by the Hon rsquo ble Supreme Court, in view, we condone the delay of 24 days in filing the appeal. The Condonation of Delay Application is allowed. The case may be fixed in due course.
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2005 (2) TMI 591
Rectification of mistake - Appeal - Bias ... ... ... ... ..... so cannot be treated as ldquo mistake apparent from the record. 1971 (2) SCC 526 and 1997 (8) SCC 502 followed . (para 7). (5) Dinkar Khindria v. CC, New Delhi - 2000 (118) E.L.T. 77 (Tri.-L.B.) Rectification of mistake is by no means an appeal in disguise whereby an order even if it is not valid, is reheard and redecided -Rectification of mistake applications lies only for patent mistake -Only in a case where the mistake stares one in the face and there could reasonably be no two opinions entertained about it, a case of rectification of mistake could be made out - Section 129B(2) of Customs Act, 1962. (1) Time and again, it has been emphasized that only errors which stare one in the face without elaborate arguments could be rectified under Section 35C(2) of the Central Excise and Salt Act, 1944. (2) If the argument is advanced but no finding is given then the same cannot be said to be error apparent from the records. 5. emsp In view of the above findings the ROM is rejected.
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2005 (2) TMI 590
Production capacity based duty ... ... ... ... ..... he ACD Rules required the Commissioner to determine ACP quasi-judicially and communicate his order to the manufacturer. Any letter sent by any subordinate officer intimating to the party an ACP claimed to have been determined by Commissioner would not serve this requirement of law, nor would such letter be a legally valid basis for demand of duty. Therefore, after setting aside the Assistant Commissioner rsquo s proceedings dated 14-10-1997 and 6-4-1998, we direct the jurisdictional Commissioner of Central Excise to determine the ACP of the appellant-unit for the relevant period in accordance with law and the principles of natural justice and duly communicate the same to the party. He shall also quantify the demand of duty after taking into account the payments already made by the party. In the circumstances, the Order-in-Original confirming demand of duty without valid ACP order and the impugned Order-in-Appeal are set aside. 6. emsp The appeal is allowed in the above terms.
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2005 (2) TMI 589
... ... ... ... ..... and also the fact that duties have been subsequently paid on such length of cables as actually used. No penalty as regards the recovery of duty of Rs. 75.00 lakhs on this account is therefore called on M/s. VSNL. As regards the duty liability of Rs. 7.00 lakhs (approx) on cables replaced and repaired, it is an admitted position that M/s. VSNL supervised the repairs and replacement of this length of cable and they therefore cannot be heard of not being aware about the repairs/replacement work being carried out with imported goods. They therefore knowingly dealt with the goods which they were aware are non-duty paid and thus liable to confiscation, therefore they are liable to penalty under Section 112 of the Customs Act, 1962. We would consider upholding the penalty on this component of duty of Rs. 7.00 lakhs approx. We would therefore reduce the penalty from Rs. 10.00 lakhs as imposed to Rs. 1.00 lakh and allow the appeal partially. 8. emsp Appeals disposed of in above terms.
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2005 (2) TMI 588
Settlement of case - Demand, penalty and prosecution for illegal import ... ... ... ... ..... made full and true disclosure of its duty liability, immunity from payment of interest in excess of 10 per annum is granted under Section 127H of the Customs Act, 1962. This would mean that the applicants shall have to pay interest on the above amount of duty demanded at the simple rate of 10 per annum from the date of imports/warehousing till the date(s) those were deposited. The applicant shall calculate the interest liability within seven days from the date of receipt of this order and submit the same to the Revenue who in turn shall confirm the figure of interest to the applicants within the next 7 days to facilitate payment of the (interest) amount within 30 days from the date of receipt of this order. 11. emsp The above immunities are granted to the applicants in terms of Section 127H of the Customs Act, 1962. 12. emsp This order of settlement shall be void if the Settlement Commission subsequently finds that it has been obtained by fraud or misrepresentation of facts.
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2005 (2) TMI 587
Export oriented unit (100%) - Demand ... ... ... ... ..... ements were covered in this case on CT3 rsquo s in question. CT3 proforma itself indicates that this certificate is to be used covers only excisable goods. Excisable goods would be such goods which by definition of the levy under the Central Excise Act, 1944 would be the goods manufactured or produced in India. When we come to the conclusion that goods in this case (i.e. printed fabrics) are not proved to be manufacture out side India and are goods manufactured in India. We cannot find any reason to deny the benefit of Notification 8/97 as arrived at by the orders impugned before us. The reliance placed by the ld. Advocate on the case of Favourite Industries - 2003 (156) E.L.T. 802 would support the plea to set aside the order impugned herein based on ldquo deemed export rdquo interpretation. Nothing contrary has been shown. 2. emsp We find therefore, no reasons to uphold the order impugned. The same is required to be set aside and appeal allowed. 3. emsp Ordered accordingly.
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2005 (2) TMI 586
Rectification of Mistake ... ... ... ... ..... er of the Tribunal to show that the case has been decided without considering the contention that impugned order had gone beyond the scope of the show cause notice. 3. emsp I have heard both sides and perused records. 4. emsp It is seen that the order has been passed on an interpretation of Rule 173L and it has been held that the refund claim did not satisfy the legal requirements of that rule. It is well settled that a legal question can be raised at any stage of the proceedings and also considered suo motu by the Tribunal or a Court. That being the legal position, point raised in the ROM application is not relevant. The ROM application is, therefore, rejected.
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2005 (2) TMI 585
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... . 2. emsp We have heard both sides. 3. emsp The applicants have made out a strong prima facie case for waiver in the light of the definition of capital goods in Rule 2(b) of the Cenvat Credit Rules, 2002 which defines capital goods as ldquo all goods falling under Chapters 82, 84 hellip ..used in the factory of the manufacturer of final product. rdquo Prima facie there is no finding of the Commissioner that the use of the machinery was by M/s. Krupp Industries India Ltd. in their factory for the manufacture of sugar or molasses. In other words, although the Commissioner has found that the machinery was manufactured by M/s. Krupp Industries, he has not further held that the use of such machinery was in Krupp rsquo s factory for the manufacture of final products. Therefore, in the light of Rule 2(b) of the Cenvat Credit Rules, 2002, the applicants have made out a prima facie case. We, therefore, waive pre-deposit of duty and penalty and stay recovery thereof pending the appeal.
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2005 (2) TMI 584
Classifiaction ... ... ... ... ..... ng accessories, including handkerchief, gloves, shawls, scarves, mufflers, mantillas, veils, ties, bow-ties, cravats, mittens and mitts. rdquo 7. emsp From the reading of the Notification, we find that it covers only clothing accessories including handkerchief, gloves, shawls, scarves, mufflers, mantillas, veils, ties, bow-ties, cravats, mittens and mitts, and it does not cover stockings and socks, which are covered under the scope of Tariff Entry Sub-Heading 6102.00. As Socks are specifically not mentioned in the Notification, therefore, we find that Socks are not entitled for the benefit of the above mentioned notification. The ratio of the decision relied upon by the appellants in the case of CCE v. Bakelite Hylam (supra) not applicable to the facts of the present case. The socks covered under Tariff Heading are specifically omitted from the scope of the Notification. Therefore, we find no infirmity in the impugned order and the appeal filed by the appellants is dismissed.
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2005 (2) TMI 583
Cenvat/Modvat - Inputs ... ... ... ... ..... Mills Ltd. 1992 (60) E.L.T. 479 (Tribunal) held that since there are no prescribed time for consumption and further the goods in question were lying in the store-room within the factory premises, the Department was not justified in disallowing the Modvat credit on the presumption that the same may not be used as input in the manufacture of final product. 2. emsp The ld. JDR tried to distinguish the aforesaid decision on the ground that the fact in the present case differ inasmuch as in the present case the goods have become obsolete. He relied on the Board Circulars dated 22-2-1995 and 16-7-2002 and submitted that in view thereof the credit is not admissible. 3. emsp We find that the above decisions of the Tribunals have attained finality as they have not been appealed against and as such we have no reasons to differ with the decisions of our coordinate Bench as on date. Therefore, following the same we set aside the impugned order and allow the appeal filed by the appellant.
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2005 (2) TMI 582
Redemption fine - Quantum of - Confiscation and penalty ... ... ... ... ..... oods is therefore ordered to be set aside. As regards the Indian currency, the Commissioner has not arrived at any finding on the documents of acquisition produced and also the currency cannot be related to the gold i.e. 150 gold bars of foreign mark being transported concealed in the vessel and by Osman Jusab Jasraya, in any case there is no material to indicate the said currency to be sale proceeds of the smuggled gold. The confiscation of the Indian currency ordered is therefore required to be set aside. Goods seized from the residential premises of Osman Jusab Jasraya are found to be not liable to confiscation. Imposition of penalty of Rs. 30,000/- under Section 112 (a) of the Customs Act, 1962 on him cannot be upheld. The same is required to be set aside. 4. emsp In view of the findings hereinabove, the order against appellant Osman Jusab Jasraya is set aside and his appeal allowed. Appeal of Abdul Rajak Osman Jasraya is rejected. 5. emsp Appeals disposed of accordingly.
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2005 (2) TMI 581
Confiscation, fine and penalty - Smuggled goods ... ... ... ... ..... gredient for imposing a penalty on the persons enumerated in Section 112(b) of the Customs Act. The goods may be liable to confiscation for contravention of the provisions of the Customs Act but the person who is in possession of the goods need not necessarily have anything to do with either smuggling or dealing with them knowingly. The evidence brought out by the department nowhere suggests that the appellants were aware that the goods in question were smuggled into the country. Their dealing in such goods, whose tainted nature they are unaware of, is not covered under Section 112(b) of the Customs Act. The penalties imposed on these persons, therefore, cannot be sustained while upholding confiscation of the goods. We, therefore, set aside the penalties imposed in each of these appeals. 10. emsp In fine, we pass the following order - (a) Confiscation and redemption fine are upheld. (b) Duty demands are upheld. (c) Penalties are set aside. 11. emsp Appeals are partly allowed.
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2005 (2) TMI 580
... ... ... ... ..... within the Zone rdquo . 3. emsp As against the above submissions for the appellants, learned DR has pointed out that the Commissioner rsquo s order is justifiable in the light of the finding that the fire is the result of neglect/default. 4. emsp The claim for exemption of the appellant flows from the following portion of notification - ldquo (ii) emsp the said goods or goods manufactured, processed or packaged in the said unit, if such goods are destroyed within the Zone rdquo . 5. emsp A perusal of the above provision would show that all imported goods, which are destroyed within the Zone, are exempt. No duty demand arises in such a case. The certificate of the Development Commissioner and other evidence confirmed that the goods in question were destroyed in the fire of12th/13th May 1998. 6. emsp In view of what is stated above, duty demand is not sustainable. The impugned order is set aside and the appeals are allowed, with consequential relief, if any, to the appellants.
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2005 (2) TMI 579
Savlon Antiseptic - Classification of ... ... ... ... ..... 30.03. 2. emsp We have heard both sides. 3. emsp We find that in the case of ICPA Health Products (P) Ltd. v. CCE, Vadodara - 2004 (167) E.L.T. 20 (S.C.), the Apex Court has held that products hexiprep, hexiscrup and hexiaque used for cleaning of wounds and abrasions and minor cuts and disinfecting the skin prior to surgery are classifiable under CET sub-heading 3003.10 and not under chapter heading 38.08 since these products have therapeutic properties and prophylactic use. The above three products contained chlorhexdine gluconate solution BP, which had therapeutic properties. In the present case, the Chemical Examiner has found that the Savlon antiseptic ldquo answers the text for chlorhexdine gluconate and centrimide rdquo which are pharmaceutically active ingredients. Therefore, the ratio of the Apex Court rsquo s decision cited supra is applicable on all fours to the facts of this case and following the ratio thereof, we set aside the impugned order and allow the appeal.
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2005 (2) TMI 578
Stay/Dispensation of pre-deposit ... ... ... ... ..... umar Didwania. The applicants have not made out a strong prima facie case in their favour in the light of the evidence gathered by the department in the form of statement of the Customs House clearing agent, Shri Dubey, for complete waiver of penalties imposed on them. Insofar as the exporting company and its directors are concerned, we are of the opinion that no prima facie case has been made out against them calling for pre-deposit of the penalties imposed on them. In view of these observations, we direct that the applicants, Deendayal Didwania and Navneet Kumar Didwania, to deposit Rs. 10 lakhs each within eight weeks and report compliance on 2-5-2005. The request for waiver of pre-deposit of penalties on the exporting firm and its two directors, i.e. the applicants in C/S/2251 to 2253, is waived. Failure to deposit the amounts directed would result in rejection of the appeals of the two applicants mentioned above without any further notice. 5. emsp Compliance on 2-5-2005.
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2005 (2) TMI 577
Stay/Dispensation of pre-deposit - Penalty ... ... ... ... ..... s that they are not aware of the fact that the series numbers of the bearings were different from those which were specified in the licence at the time of issue of the same. The department had allowed the clearance of the goods as they did not have any doubt about the genuineness of the amendment sheet No. 5 attached to the Licence. The issue has to be gone into in detail as to whether the penalties under Section 112(a) and (b) can be imposed on the applicants at a later stage. At this stage it is sufficient to mention that the applicants have made out a strong prima facie case in their favour so as to waive pre-deposit of penalties imposed on them. We accordingly, waive pre-deposit of the penalties and stay recovery thereof during the currency of this appeal. The appeals filed by the applicants may be tagged along with Appeal No. C/764, 755 etc., and be posted on 11-3-2005. The applications for waiver of pre-deposit of penalty are thus disposed off with the above directions.
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2005 (2) TMI 576
Interest on refund amount - Relevant date for computation of ... ... ... ... ..... e. Therefore, we find merit in the arguments of revenue that in view of the earlier order of the Tribunal, appellants are liable to pay interest in respect of the demand confirmed. 6. emsp In respect of the finding of the Commissioner (Appeals) that interest on the amount refunded from the date of the order of the Tribunal is also not sustainable. In view of the statutory provisions of Section 11BB of Central Excise Act where it has been specifically provided that interest is payable if the refund amount is not paid within a period of three months from the date of the order. Therefore, this portion of the impugned order is also modified to the extent that the respondents are entitled for refund after three months from the date of the final order passed by the Tribunal. In respect of the demand of Rs. 50,185/- which was adjusted from this refund, the respondent submitted that subsequently this amount was refunded to the respondent. The appeal is disposed of as indicated above.
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2005 (2) TMI 575
Appeal - Limitation - Condonation of delay ... ... ... ... ..... ing authority shows that appeal is to be filed within three months. The appellant has received the order on 18th June, 2003 and he has filed the appeal on 16th September, 2003. It appears virtually that the appeal was filed within three months as the Preamble of the original order reflects the same that it has to be filed within three months. The Commissioner (Appeals) failed to appreciate this point and dismissed the appeal on the point of limitation without discussing this aspect. Therefore, this appeal is remitted back to the Commissioner (Appeals) to admit the same after condonation of delay, if any, and then dispose off the appeal after giving personal hearing to the appellant as at this prima facie stage, the limitation aspect is mainly involved in the appeal, pre-deposit is waived and its recovery is stayed. Stay application is disposed off along with appeal with the aforesaid direction. The appeal shall be disposed off within 2 (two) months after receipt of the order.
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2005 (2) TMI 574
Exemption Notification No. 70/77-C.E. ... ... ... ... ..... ndents (they are in the nature of comments on the department rsquo s appeal, and cannot be considered as cross-objection as the assessees are not aggrieved by any part of the impugned order). We find that in respect of Battery Type Upg-125 for Foxtrot Class of submarines, there are 460 cells out of which 448 are used at a time on board the submarine. Four cells are kept at Energy Block, as spares and remaining 8 cells are also spares, which are to be used for replacement purpose. All Cells get used onboard much before the life of their main counterpart cells . This is on the basis of the letter dt. 26-4-1991 of the Ministry of Defence. It is therefore clear that the Test Cells are also supplied as ship stores for consumption on board a vessel of the Indian Navy. Hence the benefit of Notification No. 70/77-C.E., has rightly been extended to them. 3. emsp In the result, we see no reason to interfere with the impugned order and accordingly uphold the same and reject the appeals.
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2005 (2) TMI 573
Appeal - Limitation ... ... ... ... ..... ed S.D.R. 3. emsp After considering the submissions of both the sides, we observe that it has not been disputed by the Revenue that the Order-in-Original was not addressed to the appellants as it was addressed to M/s. Ravi Electric Fans (P) Ltd. The address mentioned, therein, was different from the address at which the appellants are having their factory and office. In view of these facts, the Department cannot claim that the communication of the Order was completed by sending the Order-in-Original by Registered Post. The Order-in-Original has been communicated to the appellants only on 6-2-1987 when an attested copy of the Order was handed over to them. Thus, the appeal, filed by them on 4-5-1987, is within the time limit specified in Section 35A of the Central Excise Act. In view of this, we set aside the impugned Order and remand the matter to the Commissioner (Appeals) for deciding the appeal on merit after affording a reasonable opportunity of hearing to the appellants.
............
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