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Case Laws
Showing 341 to 360 of 772 Records
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2005 (2) TMI 571
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... ... ..... om the manufacturer and has merely passed on the same to the customers. 2. emsp After considering the arguments from both the sides, and perusal of the case records, we find that the invoice itself indicated a lower price and even clarification from the suppliers dated 18-3-1993 has been received before the date of import and the issue of invoice dated 5-4-1993. As such, this is not a case of any claim in the reduction of value subsequent to the importation. Moreover, in the letter dated 26-5-1993, the suppliers have clarified that reduction has been allowed to all their customers and not specifically to the respondents. They have also confirmed the actual amount received from the buyers. Considering these facts, we are satisfied that the declared value, though less than the value indicated in the purchase order, is acceptable being the actual price paid by the respondents. Accordingly, we find no reason to interfere with the impugned order and the Revenue appeal is rejected.
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2005 (2) TMI 570
DEPB credit - Rate of DEPB credit ... ... ... ... ..... ed to the jurisdictional Adjudicating Authority to examine this aspect. 3. emsp We have considered the submissions of both the sides. The learned Advocate for the appellants has claimed that the DEPB credit should be given to them as per the rates revised by Public Notice dated 17-2-2003 w.e.f. 1-4-2002. We observe that Para 4 of the Public Notice reads as under ldquo With respect to the items in the book titled ldquo Schedule of DEPB Rates rdquo , where amendments in the export product descriptions/DEPB Rates/Value Caps and additions of new DEPB entries were made between the period1-4-2002 to till date, the revised DEPB Rates and the period for which such revised DEPB Rates would be effective shall be as per Annexure-II to this Public Notice. rdquo 4. emsp Accordingly, we set aside the impugned Order and remand the matter to the jurisdictional Adjudicating Authority with the direction to apply the rates as revised by Public Notice No. 62 (RE-2002)/2002-2007, dated 17-2-2003.
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2005 (2) TMI 569
Demand - Waste and scrap ... ... ... ... ..... ral Excise duty is payable as per the rate of duty mentioned in the Schedule to the Central Excise Tariff Act in terms of Section 3 of the Central Excise Tariff Act. It is not in dispute that during the relevant period no exemption exempting waste and scrap was in existence inasmuch as Notification No. 171/1988-C.E., dated 13-5-1988 which used to exempt ferrous waste and scrap had been rescinded by Notification No. 64/1994, dated 1-3-1994. After the notification No. 171/1988 was rescinded the Central Excise duty became payable on ferrous waste and scrap. The exemption was again granted by Notification No. 23/1995 dated 16-3-1995. In view of this the duty amount confirmed against the Appellants is upheld. We, however, agree with the learned Advocate that no penalty is imposable on the Appellants as they were under the bonafide belief that they being department of Central Government are not liable to pay Central Excise duty. We, therefore, set aside the penalty imposed on them.
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2005 (2) TMI 568
Stay order - Modification thereof - Precedent - Binding precedent ... ... ... ... ..... Departmental Representative submitted that once the Stay Order has been passed and time has also been extended for complying with the same, there is no justification for the Applicants to come up for modification. 2. emsp We have considered the submissions of both the sides. Any direction given in a Stay Order does not act as a precedent. Learned Senior Departmental Representative has rightly submitted that the last extension was granted to the Applicants on their request for complying with the direction contained in the Stay Order. It is not open to them to come up now for modification of the Stay Order. We do not find any merit in the application which is rejected. As the Applicants have not complied with the Stay Order passed by the Tribunal, we dismiss the Appeal filed by them. However, in the interest of justice, we give them the liberty to come up for restoration of Appeal if the remaining amount as directed in the Stay Order is deposited within three weeks from today.
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2005 (2) TMI 567
Fabrics - 10Opinion 0% polyester curtain fabric - Classification of - Opinion ... ... ... ... ..... e the knitted fabric is excluded from the ambit of Heading 58.04, the impugned goods being knitted, as opined by the Textile Committee, cannot fall under the Heading 58.04. The decisions relied upon by the learned D.R. are not applicable to the facts of the present matter. In the case of Vestergard Frandsen (I) Pvt. Ltd., the Tribunal has classified the product netting fabrics under Heading 58.04 as the foreign supplier had described the goods only as netting fabrics. Thus in the said decision there was no material to establish that the imported material was knitted fabric whereas in the present matter Textile Committee, in its opinion, characterized the fabric as knitted fabric. In the case of Mehta Nettings (P) Ltd. the issue relates to the classification of the Round Mosquito netting fabrics and the dispute was between Tariff Heading 58.04 and 52.06. There was no dispute as to whether the fabric was knitted. We, therefore, set aside the impugned Order and allow the appeal.
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2005 (2) TMI 566
Confiscation and penalty - Smuggled goods ... ... ... ... ..... to be accepted. From the record, we find that the respondents claimed to have purchased the goods (Chinese Silk Yarn) from M/s. Anmol Trading Company and M/s. SB Textiles, Varanasi who are the importers of Chinese/Korean Silk Yarn. He had produced the bills showing the purchase of these goods and the correctness of the same has remained undoubted. No presumption regarding the smuggled nature of the goods could be drawn, being not notified/prohibited goods under Section 123 of the Act. The purchase of the goods by the respondents from the above said two firms, does not stand falsified from any evidence brought on record by the Revenue. The learned Commissioner (Appeals) has rightly reversed the order-in-original and set aside the confiscation of the goods under Section 111(d) and the penalty imposed on the respondents under Section 112 of the Act. We do not find any illegality in his impugned order. In view of the discussion made above, the appeal of the Revenue is dismissed.
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2005 (2) TMI 565
Stay/Dispensation of pre-deposit - Penalty on co-accused ... ... ... ... ..... e impugned order that no penalty has been imposed on the main accused. Therefore, it is not understood as to how the Commissioner has chosen to impose the penalty on the co-accused. Since the penalty has not been imposed on the main accused, we find that there is a strong prima facie case for dispensation of pre-deposit of the penalty amount on the appellants. We, waive the pre-deposit of the penalty amount. The case is fixed for regular hearing on 21-3-2005.
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2005 (2) TMI 564
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... ... ..... not apply to such goods if allowed to be sold to India. rdquo 5. emsp It is thus apparent from the perusal of this Notification that the goods manufactured by a 100 EOU is exempted from payment of Central Excise duty provided the goods are not sold in India. It cannot be claimed by Revenue that sales of goods by the Appellants to Bhutan amounts to lsquo sale in India rsquo as Bhutan is an independent country. Once the goods have not been sold by the Appellants in India, the question of collecting any duty from them does not arise as Notification No. 125/84-C.E. exempts all goods produced or manufactured in a 100 E.O.U. There is no condition specified in Notification No. 125/84-C.E. regarding sale to Nepal or Bhutan only in freely convertible currency for the purpose of availing the exemption from payment of duty. A duty liability cannot be created against the appellants by issuing a Circular by the executive. Accordingly, we set aside the impugned Order and allow the Appeal.
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2005 (2) TMI 563
Classification of goods ... ... ... ... ..... ed products under Heading 39.17 of the Tariff. 3. emsp We have considered the submissions of both the sides. The mere fact that the appellants had themselves classified the impugned products under Heading 39.17 of the Tariff does not prevent them from challenging the classification subsequently on their finding out that the goods are appropriately classifiable under Heading 84.24. The Tribunal, in all the decisions relied upon by the learned Advocate, has held that LDPE/HDPE itself being component part of sprinkler irrigation system are classifiable under sub-heading 8424.91 of the Central Excise Tariff. One of such decisions in the case of Elgi Ultra Appliances Ltd. v. C.C.E. (supra) has also been affirmed by the Supreme Court as reported in 2000 (120) E.L.T. A119 (S.C.). Thus, following these decision, we hold that the impugned products are classifiable under sub-heading 8424.91 of the Central Excise Tariff. Accordingly, we set aside the impugned Order and allow the appeal.
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2005 (2) TMI 562
Stay of order - Cess - Fish - Export thereof ... ... ... ... ..... in this application. We have also heard the ld. Sr. Advocate Shri Joseph Vellapally for the respondents, who has placed on record the provisions of the Agricultural Produce Cess Act, 1940 and has also invited our attention to the decision of the Orissa High Court in the case of State of Orissa v. CI Foods Ltd. 50 STC 152 wherein, on the basis of the evidence available in that case, the High Court held that lsquo fish rsquo and lsquo prawn rsquo were distinct from each other. At least, the High Court rsquo s decision exists in favour of the assessee. No binding case law to the contra has been cited by the Revenue. Prima facie, it appears to us that the Revenue has not made out a good case for stay of operation of the impugned orders which can claim support from the High Court rsquo s decision. 3. emsp At this stage, ld. JCDR prays for early hearing of the appeals. This prayer is not opposed. We accede to the request of ld. JCDR and direct the appeals to be posted to 28-4-2005.
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2005 (2) TMI 561
SSI Exemption - Remand ... ... ... ... ..... 00/- without disturbing the exemption availed of. That order has also attained finality. At this belated stage in a proceeding relating to duty demand for a subsequent period, that too on a different ground relating to obtaining of registration from the Directorate of Industries, it is not open to the lower authorities to hold that the exemption already availed of had been incorrectly availed of and for that reason the assessee has not availed of small scale exemption. Such a finding can not be sustained since it is beyond the scope of the proceedings as well as the remand order. 6. emsp In the result, the appeal succeeds and is allowed after setting aside the impugned order. The appellant shall be entitled to consequential relief, if any. 7. emsp The Miscellaneous application which points out that impugned order has committed an error in confirming a duty amount in excess of the amount proposed in the Show Cause Notice does not survive as the appeal is being allowed in full.
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2005 (2) TMI 560
Accessories for mobile hand sets - Chargers, battery and antenna ... ... ... ... ..... ation under CTA Heading 8529.90 as required under the Notification. 2. emsp We have heard both the sides. There is no dispute that the imported items are accessories of CDMA mobile hand sets. They are, therefore, covered by the description of the goods under Sl. No. 320. As per Col. 2 of Sl. .No. 320, the goods must fall for classification under CTA 8529.90 or any other Chapter. Therefore, the importers are correct in their contention that as long as the goods are covered by the description set out against Sl. No. 320, which they admittedly are, they are eligible to exemption irrespective of where the items fall for classification. We, therefore, extend the benefit of exemption from duty to the goods in question, set aside the impugned order by which the direction for assessment of Bill of Entry by denying the benefit of Notification has been upheld and allow the appeal with consequential relief due in accordance with law to the appellants, who have deposited the entire duty.
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2005 (2) TMI 559
Valuation (Central Excise) - Transportation charges - Demand - Limitation - Extended period - Invocation of
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2005 (2) TMI 558
Natural justice - Non-supply of relied upon documents ... ... ... ... ..... nd informed regarding the personal hearing. On the request of the adjudicating authority, Shri Suneel Bagzai sent his employee Shri Karan Singh to receive the notice of hearing. In spite of this, the respondents had not filed any reply to the show cause notice nor appeared before the adjudicating authority. The Commissioner (Appeals) in the impugned order also taken note of the fact that the respondents were allowed to inspect the record and also to obtain photocopies of the documents. In these circumstances, we find that the finding of the Commissioner (Appeals) is that the impugned order is passed in violation to the principles of natural justice are not sustainable. Hence set aside. The Commissioner (Appeals) had not decided the issue involved in the appeal on merits. Therefore, the matter is remanded to the Commissioner (Appeals) to decide the appeal on merits after affording an opportunity of personal hearing to the respondents. The appeals are disposed by way of remand.
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2005 (2) TMI 557
Stay/Dispensation of pre-deposit ... ... ... ... ..... re, seek waiver of pre-deposit of duty of Rs. 7,75,558/- and penalty of Rs. One lakh. 2. emsp The prayer is opposed by the ld. DR who reiterates the findings of the Authorities below. 3. emsp We have carefully considered the rival submissions and perused the records including the written submissions filed by the applicants, which have not been taken into account by the Bench while directing pre-deposit of the entire amount. We are also satisfied that a strong prima facie case for waiver has been made out by the applicants in the light of the Tribunal rsquo s order in Pushpaman Forgings v. C.C.E. 2002 (149) E.L.T. 490 (T) and the decision of the Madras High Court in Eternit Everest Ltd. 1997 (89) E.L.T. 28 (Mad.) to the effect that machinery provisions under Section 11D did not exist during the period in dispute. We, therefore, waive the pre-deposit of duty and penalty and stay recovery thereof pending the appeal. 4. emsp Copy of this order should be given to both sides Dasti.
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2005 (2) TMI 556
Valuation - Demand - Limitation - Penalty ... ... ... ... ..... ty under Rule 173Q(1) to Rs. 1 lakh. 7. emsp In regard to the issue of quantification of duty raised in the appeal memorandum we find that the claim has not been substantiated by the appellant. We therefore reject the plea that quantification of duty has not been correctly done. Further a perusal of the price list effective 1-4-1992 shows that at one place it is mentioned that the trade price to retailers in inclusive of Excise duty and at another place under the head terms of business it is stated that Central Excise duty whenever applicable, ST and other government levies will be charged extra on the invoices. On this ground also the plea that quantification has not been done allowing permissible deductions is rejected. 8. emsp The appeal is allowed partly in following terms. (a) Demand for differential duty of Rs. 20,06,016/- (Rs. Twenty Lakhs Six Thousand and Sixteen) is upheld. (b) Penalty is reduced to Rs. 1 lakh. (c) Demand for interest under Section 11AB is set aside.
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2005 (2) TMI 555
Rectification of mistake - Contention raised before Tribunal ... ... ... ... ..... ubmissions of both the sides. As the demand of duty against the Applicants has been upheld by the Tribunal by denying the benefit of Notification No. 15/2002-C.E., they would certainly be eligible to avail the Modvat credit of the duty paid on inputs and capital goods subject to the condition of producing the duty paying documents to the satisfaction of the Adjudicating Authority. Further it has not been disputed by the Revenue that the duty has been computed at the retail sale price without giving the abatement of 40 , as allowed by the Government. Duty cannot be charged without allowing the available abatement from the retail price. We, therefore, allow the application for rectification of mistake and direct the Adjudicating Authority to recompute the amount of duty payable by them after allowing abatement as per the Notification available to the Applicants and also to allow Modvat credit on production of duty paying documents within two months of the receipt of this order.
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2005 (2) TMI 554
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... ... ..... he buyer is not a related person and the price is the sole consideration for the sale. It has not been disputed by the Revenue that the Appellants has sold the impugned goods at the rate of Rs. 11.28 per BL at the time and place of removal. There is no material brought on record to show that the price is not the sole consideration for sale of ethyl alcohol denatured by the Appellants to M/s. Vam Organics Chemicals Ltd. Further, there is no material on record to show that M/s. Vam Organics Chemicals are related person as per the definition of related person given in Section 4(4)(c) of the Central Excise Act. Once the price is the sole consideration and the buyer is not a related person of the assessee, the provisions of Section 4(1)(a) will be applicable and resort cannot be made to the provisions of Section 4(1)(b) of the Central Excise Act for determining the assessable value. We, therefore, find no merit in the impugned orders which is set aside and the appeals are allowed.
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2005 (2) TMI 553
Refund - Duty paid inputs used in the manufacture of export goods ... ... ... ... ..... or lapse on the part of the appellants in not getting themselves registered with the Central Excise. He has wrongly overlooked the ratio of law laid down by the Tribunal in Kansal Knitwears v. CCE, Chandigarh 2001 (136) E.L.T. 467 which was an identical case wherein also the goods were exported and refund of duty was claimed under the Notification No. 47/94 and was sought to be denied to an assessee by the Revenue for non-compliance with the procedural requirement, but the Tribunal did not accept that ground and observed that benefit of the notification could not be denied for simple non-compliance with the procedural requirement, when the actual export was proved by ample evidence on record. The case of the appellants stands fully covered by the law laid down in that case. 3. emsp Consequently, the impugned order cannot be sustained and is set aside. The appellants are entitled to the refund of duty amount in question. The appeal of the appellants accordingly stands allowed.
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2005 (2) TMI 552
Stay/Dispensation of pre-deposit - Cenvat credit of CVD ... ... ... ... ..... of any provision analogous to Rule 57F in the CENVAT Credit Rules. After examining the records and hearing both sides, we find that there is no dispute of the above CVD having been paid on the imported components or of such components having been utilised by the assessee. The only reason stated for not accepting the above certificates or the Customs authorities is that Rule 57E, whereunder the said certificates were issued was not in the statute book during the relevant period. No analogous provision was discernible in the CENVAT Credit Rules either. Ld. Consultant for the appellants has got over this situation by citing decisions of the Tribunal allowing CENVAT credit in similar situations. Prima facie, we also do not find any justification for denial of the substantive benefit of Modvat credit to the appellants when they have fulfilled the substantive requirements of such credit. In the circumstances, waiver and stay are allowed in respect of the above amount as prayed for.
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