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Case Laws
Showing 141 to 160 of 701 Records
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2005 (3) TMI 689 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Demand and penalty ... ... ... ... ..... and render services by collecting and providing pure blood to the public at large. As an essential equipment, the first appellant received an analyzer by free gift from the donor abroad. The machine was brought under the Notification No. 64/88, dated 1-3-1988. The appellants have fulfilled the conditions of the Notification. emsp 5.The appellants submit that they are entitled to exemption certificate. No duty can be imposed as they have fulfilled the conditions. The seizure is bad in law and imposition of redemption fine is also bad in law as there was no breach of Section 111(o) of the Customs Act. Hence the application. emsp 6.The issue involved in this appeal is said to be pending before the Larger Bench as submitted by both sides. Therefore, full waiver is granted and its recovery is stayed. Both sides are at liberty to mention about the decision of the Larger Bench as soon as it is rendered and get listed this appeal for hearing. Order accordingly. (Pronounced in Court)
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2005 (3) TMI 688 - CESTAT, MUMBAI
Refund - Debit towards written off semi-finished goods in books of account ... ... ... ... ..... nt, would be covered under it or not. The Order-in-Original has discussed elaborately on this aspect and held - ldquo Thus, the claimant has in fact not paid duty on the semi-finished products, but has reversed the Modvat credit involved in the said material, which they had taken on the inputs utilised towards the manufacturing of these intermediate materials rdquo . Further it is observed that ldquo once these materials have been written off in terms of Board rsquo s Circular, equivalent Modvat credit needs to be reversed by them, which they have done and have no question of refund claim arises in their case rdquo . 6.The above reasoning given in the Order-in-Original and which has been upheld in Order-in-Appeal is in tune with clause (iii) of the above referred Circular. Therefore, I find nothing irregularity or illegality in the impugned order under appeal. Equally I find no merits in the present appeal. Accordingly, appeal is dismissed. (Pronounced in Court on 29-3-2005).
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2005 (3) TMI 687 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Interpretation ... ... ... ... ..... 9/98 which uses the term ldquo Aggregate value of clearance of all excisable goods for home consumption by a manufacturer for one or more factories or from a factory by one or more manufacture rdquo . This clause and term used, marked by does not use the words and terms ldquo for and on behalf rdquo as they were used in the Notification No. 85/85, relied upon by the lower authorities following the decision in the case of CC, Bangalore v. Gammon Fan Chemicals Ltd. 2003 (152) E.L.T. 28 (S.C.) . 3.In view of this marked changed in the terms used, in notification 9/98, we find that prima facie, a case for waiver of pre-deposit requirement and ordering stay of recovery has been made out, since a holding company and the subsidiary company be cannot considered to be same manufacturer. emsp 4.The issue involved in this matter are of a recurring nature and requires out-of-turn resolution. Therefore, we would grant both sides the liberty to file such application. (Pronounced in Court)
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2005 (3) TMI 686 - CESTAT, MUMBAI
Vehicles registered as taxis ... ... ... ... ..... d 4-8-2004 granting them the benefit wherever the certificates were produced, after the prescribed period of three months. 2.The ld. D.R. submits that the benefit of this decision will not be applicable, since in this case, the registration itself was applied for after the statutory period of three months of clearance of the vehicles and there is no provision for condoning or extending this period of three months in the relevant notification. He relies upon the decision of the Apex Court in CCE, Allahabad v. Ginni Filament Ltd., 2005 (181) E.L.T. 145 (S.C.) and submits that since in this case the RTO registration was itself applied for after three months and it was not a case of delay of issue of the certificates by the RTO authorities, the refund claim rejection should be upheld. 3.We find force in the argument of the ld. D.R. and agree with him and in the facts of this case we find no merits to upset the order impugned. 4.Appeal consequently dismissed. (Pronounced in Court)
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2005 (3) TMI 685 - CESTAT, NEW DELHI
Appeal - Restoration of ... ... ... ... ..... bunal. The writ petition was dismissed on 1-4-2002. In the mean time, on 8-5-2001 the Tribunal dismissed the appeal for non-compliance to the provisions of Section 35F of Central Excise Act. Against this, the applicant again filed a writ petition before the Hon rsquo ble High Court and the Hon rsquo ble High Court vide order dated 3-11-2003 dismissed second writ petition. Thereafter, the applicant deposited the amount as per the stay order passed by the Tribunal and filed this application. emsp 4.As the order passed by the Tribunal asking for pre-deposit and dismissal of the writ petition merged with the order passed by the Hon rsquo ble High Court. As the order of dismissal are merged with the order passed by Hon rsquo ble High Court, therefore, recalling of the same amounts to review of the order which is already merged with the orders and the Hon rsquo ble High Court. In these circumstances, the application is dismissed. (Dictated and pronounced in open Court on 29-3-2005)
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2005 (3) TMI 684 - CESTAT, NEW DELHI
Appeal to Appellate Tribunal - Filing of ... ... ... ... ..... eal by the Proprietor of M/s. Abhishek Electronics is dismissed as not required for the reason that the proprietorship concern has filed a separate appeal bearing No. C/21/2004/NB-A. (Dictated in open court on 28-3-2005)
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2005 (3) TMI 683 - CESTAT, BANGALORE
Stay/Dispensation of pre-deposit ... ... ... ... ..... llants should be put into terms. emsp 3.On a careful consideration of the submissions made by both sides, we notice that the appellants have exported double yarn and whatever they have cleared for domestic purpose, they have paid duty. There are two Trade Notices for clearing raw materials for doubling purposes without payment of duty. The appellants have not taken Modvat credit as they have not paid duty on single yarn. Therefore, the appellants submission that there is Revenue neutrality is a strong ground in their favour. After examining the entire facts of the case, we find that the appellants have a strong prima facie case in their favour and they are required to give full waiver in the matter. The stay applications are allowed unconditionally. In view of the similar order in the case of M/s. GTN Textiles Ltd. which is listed for hearing on 9-5-2005, these appeals should be linked up with the above case for hearing on 9-5-2005. (Pronounced and dictated in the open court)
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2005 (3) TMI 682 - CESTAT, KOLKATA
Cenvat/Modvat ... ... ... ... ..... declaration under Rule 57G of Central Excise Rules, 1944 for item ldquo Link Chain/Steel Chain rdquo under sub-heading 7315 vide declarations dated 5-3-1997 and 6-11-1997, they file declaration for ldquo Conveyor Chain rdquo of sub-heading 8431 only on 20-5-1999, after taking the credit on 27-1-1999 and that too when a show-cause notice was issued on 20-4-1999. In the present case, the classification was different and the goods in question were also different from the declarations under Rule 57G submitted by the appellants vide their letters dated 5-3-1997 and 6-11-1997. The appellants submitted declaration for Conveyor Chain after issuance of show-cause notice. Therefore, the adjudicating authority has rightly disallowed the credit. The filing of the declaration is mandatory and substantive requirement of law and failure to do so will disentitle the credit. I do not find any force in the appeal. Accordingly, I reject the appeal filed by the appellant. Pronounced on 23-3-2005
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2005 (3) TMI 681 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... ure (c) rendering services rdquo 2.The appellants rely on the decisions in Commissioner of Bombay v. Hotel Leela Venture Ltd., 2003 (158) E.L.T. 777 (Tri - Mumbai), Enjay Hotels P. Ltd., 2000 (119) E.L.T. 108 (Tribunal) which is the erstwhile name of the very said importers herein. Notification No. 110/95 was considered in the decision in the case of Enjay Hotels P. Ltd including the scope of coverage of the words capitals goods along with the word lsquo plant rsquo . The benefit of the goods i.e. marble slabs imported in that case to be used in the building or as parts of a building were held to be covered by the term lsquo plant rsquo . Following the same prima facie, therefore, we find that the appellants have made out a good case for full waiver of the pre-deposit requirements and stay of the recovery pending the regular hearing of this appeal. emsp 3.The stay application disposed off in above terms matter to come up for regular hearing on 30-5-2005. (Pronounced in Court)
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2005 (3) TMI 680 - CESTAT, BANGALORE
Warehousing - Duty liability ... ... ... ... ..... k by the appellants as the conclusive proof of re-warehousing. It is not the case of the department that the goods were diverted to another unit or that they were not used by the EHTP for the purposes specified in the Notification. The requirement of obtaining the material duty free against CT-3 certificates is an obligation cast upon the user unit. Since, admittedly, the goods were warehoused at the premises of the user industry (EHTP unit), the duty demand on the warehoused goods could only be raised on and confirmed against the user industry according to Rule 20(3) of the Central Excise Rules, 2002 and not against the supplier i.e. the appellants. Duty liability on the appellants would arise only if the goods had not been warehoused. 3.In view of the above, we hold that the duty demand against the appellants is unsustainable and set aside the same together with the penalty. Thus the impugned order is set aside and the appeal allowed. (Pronounced in Court on 21 March, 2005)
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2005 (3) TMI 679 - CESTAT, NEW DELHI
Refund - Return of defective goods to factory ... ... ... ... ..... er Rule 173L. 3.It is quite evident from the record that the appellants did not follow the procedure laid down in Rule 173L for claiming refund of the duty paid on the material which was received back by them being defective. The contention of the Counsel is that the said procedure could not be followed as the material was concentrate cannot be accepted as they even did not apply to the Commissioner for the relaxation of the provisions of Rule 173L at any stage. They were required to maintain detailed account of the goods and the processes to which those were subjected. There is also no evidence to show that they completed the process for which the goods were brought back. 4.For having failed to satisfy the conditions of Rule 173L, the appellant rsquo s refund claim has been rightly rejected. We do not find any illegality in the impugned order and the same is upheld. The appeal of the appellants is dismissed. (Operative part of the order already pronounced in the open Court.)
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2005 (3) TMI 678 - CESTAT, NEW DELHI
Cenvat/Modvat - Inputs - Reversal of - Notification No. 6/2000-C.E. ... ... ... ... ..... from the whole of the duty excise leviable on goods manufactured by them under Sl. No. 7 of Notification No. 6/2000 and (3) this notification provides exemption based on the quantity of clearance in as much it exempts (a) during the period from 1-3-2000 to 31-3-2000, upto first clearance of any aggregate quantity not exceeding 210 M.T. and (b) on or after 1-4-2000, in any subsequent financial year, up to first clearance of an aggregate quantity not exceeding 2500 M.T. Their contention that they did not make use of stock for claiming exemption up to 210 M.T. is not tenable as Rule 57H(7) is very specific. Once the option to avail exemption is exercised, provisions of sub-rule (7) comes into operation. Accordingly we uphold the disallowance of Modvat credit. However, we agree with the learned Advocate that this is not a case calling for imposition of penalty. We, therefore, set aside the penalty imposed on the Appellants. But for this modification both the appeals are rejected.
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2005 (3) TMI 677 - CESTAT, CHENNAI
Cenvat/Modvat - Declaration - Delay in filing - Penalty - Imposition of ... ... ... ... ..... ) would not, even otherwise, be available to the appellants who disentitled themselves to such benefit by means of fraud. 7.The Modvat credit was reversed prior to show-cause notice. Ld. Counsel has argued that, in such a situation, penalty was not liable to be imposed on the ground of wrong availment of Modvat credit. Ld. DR has, on the other hand, submitted that the reversal of Modvat credit came after detection, by the department, of the assessee rsquo s fraud. In this area also, the Supreme Court rsquo s ruling seems to have a bearing and, therefore, I am unable to do away with the penalty. However, the factum of reversal of Modvat credit before issuance of show-cause notice is recognisable as an extenuating factor for reducing the quantum of penalty. In the facts and circumstances already noted, I reduce the quantum of penalty to Rs. 3 lakhs. With this modification, the impugned order is sustained and the appeal is dismissed. (Order dictated and pronounced in open Court)
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2005 (3) TMI 676 - CESTAT, BANGALORE
Refund - Countervailing duty ... ... ... ... ..... these facts, it is very clear that the appellants paid the duty only after the Supreme Court vacated the stay. Hence their contention that they had already paid duty even when the stay was in operation is not correct as per the records. These facts have been gone through by both the Original authority and the first Appellate authority. In these circumstances, it is clear that the Additional duty has been paid only after the stay has been vacated and in terms of the interim order of the Supreme Court. The Supreme Court has observed that in the interest of equity while the demand of additional duty is quashed, the additional duty already paid need not be refunded. In view of this specific directive of the Supreme Court, the Original authority rejected the refund claim. The Appellate authority upheld the Order-in-Original. In these circumstances, we do not find any infirmity in the impugned order. Hence the party rsquo s appeal is rejected. (Pronounced in the court on 18-3-2005)
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2005 (3) TMI 675 - CESTAT, MUMBAI
... ...
... ... ..... also, costing is to be determined thereafter. The order is therefore required to be set aside and remitted back to the original authority with directions to re-hear the appellants and re-determine the cost as per the Board Circular and thereafter apply the costing rule to determine the value. 4.The appellants have contested before us as regards the application of costing rule itself, as also they have contested demand on bar of limitation. Without arriving at any findings on these 2 issues. We are ordering this remand with directions that the application of the appropriate valuation rule is kept open to both sides along with the question of bar of limitation in the de novo proceedings. Both sides can have their say on these issues. We also make it clear the plea of valuation under Section 4(1)(a) of the Central Excise Act is not open to be re-agitated in the de novo proceedings. 5.This appeal is allowed in above terms. 6.Application also stands disposed. (Pronounced in Court)
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2005 (3) TMI 674 - CESTAT, NEW DELHI
... ...
... ... ..... ention is also that the pipes manufactured at Amritsar was cleared to one dealer whereas the pipes manufactured at Kashipur unit were supplied in whole of U.P., therefore, the cost of freight is more in respect of Kashipur unit. 4.Revenue reiterated the findings arrived at by the Commissioner (Appeals). 5.It is admitted by the Revenue that both the units are situated at different places one is at Amritsar (Punjab) and the other is at Kashipur (U.P.). The appellant produced evidence to the effect that the cost of electricity per unit in Kashipur unit is much more than the cost at Amritsar. The appellant also produced evidence to show that cost of raw material was also higher at Kashipur than at Amritsar. In these circumstances, we find that the assessment of the final product after taking into consideration the price at which it is cleared from Kashipur is not sustainable and set aside. The appeals are allowed. (Operative part of the order already pronounced in the open Court)
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2005 (3) TMI 673 - CESTAT, BANGALORE
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... een rendered without taking into consideration the Board rsquo s Circular No. 549/45/2000-CX.I, dated 18-9-2000 which clearly lays down that the sale value shall be in terms of the administrative control price and the compensation received by the appellants from the Government is not required to be added to the assessable value. 3.The learned SDR reiterated the departmental contention. 4.On a careful consideration, we notice that the issue is covered by the Board rsquo s Circular and, therefore, the appellants are not required to pre-deposit the amount involved to an extent of Rs. 2,35,74,116/- and penalty of Rs. 3,35,25,930/-. Hence, the stay application is allowed unconditionally. There shall be no recovery of the amounts till the disposal of the appeal. The Commissioner to file a report in the matter with regard to the applicability and acceptance of the Board rsquo s Circular. Matter to come up for final hearing on 25th April, 2005. (Pronounced and dictated in open Court)
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2005 (3) TMI 672 - CESTAT, MUMBAI
Additional Excise Duty - Measure of levy ... ... ... ... ..... eable as excise duty under Central Excise Act, 1944 read with any notification issued in relation to the duty so chargeable. In other words this levy will be 15 of the effective excise duty under Central Excise Act, 1944. It would therefore result, that there is no scope of any ambiguity about the levy the Additional Duties of Excise (T and TA) in the facts of this case. The goods were exempt under Notification 67/95, dated 16-3-1995 and Notification 22/96, dated 23-7-1996 from whole of duty of excise leviable thereon which is specified in the Schedule to the Central Excise Tariff Act, 1985. As the measures of additional duty leviable under Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 is 15 of an effective excise duty chargeable, this additional duty will also become lsquo nil rsquo . There is no mistake or impropriety found in the Commissioner rsquo s order impugned. 3.We find no merits in this appeal filed. The same is rejected (Pronounced in Court)
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2005 (3) TMI 671 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Cenvat/Modvat - Removal of inputs ... ... ... ... ..... Excise Tariff Act was interpreted and it was held that labelling and relabelling the contents alongwith branding repacking would not amount process of manufacture in such case. 2.The issue appears to be on reversal of credit of CVD availed and what is required to be reversed when inputs are being removed as inputs. This issue is well covered in the assessee rsquo s favour by the Larger Bench decision in the case of ABB 2000 (120) E.L.T. 228 (Tri. - LB) . The issue as regards to applicability of Chapter Note 11 to Chapter 29 prima facie also covers the matter in favour of assessee, therefore we find that there is prima facie good case in favour of assessee to call for full waiver of duty and penalty on merits as well as on bar of limitation. 3.At this stage, we would allow application granting full waiver of the requirements of pre-deposit under Section 35F of the Central Excise Act and order the stay of recovery and pending final orders in this appeal. (Pronounced in Court).
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2005 (3) TMI 670 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... 514, in this case the Tribunal held that no demand can be made under Rule 57CC for the clearance of Bagasse. The Revenue filed appeal before the Hon rsquo ble Supreme Court and the Hon rsquo ble Supreme Court dismissed the appeal vide order dated 20th February 2004. The Revenue relied upon the decision of the Hon rsquo ble Madras High Court in the case of Devar Sugar and Abkari Co. Ltd., Madras v. Additional Secretary reported in 1987 (32) E.L.T. 381 where the confirmed demand of duty in respect of Bagasse after holding that the Bagasse is excisable product. 3.The issue involved in the present appeal is whether the provisions of Rule 57CC are applicable in respect of Bagasse which is by-product and this issue was not before the Madras High Court. Therefore, prima facie the applicant had a strong case. The pre-deposit of whole of the duty and penalty is waived for hearing of the appeal. Adjourned to 29-6-2005 for arguments. (Dictated and pronounced in open Court on 16-3-2005).
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