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Case Laws
Showing 161 to 180 of 623 Records
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2007 (1) TMI 491 - CESTAT AHMEDABAD
Confiscation and penalty ... ... ... ... ..... have been considered as prohibited and liable to confiscation under Section 111(d) of the Customs Act, 1962. 3. emsp We have considered the submissions. We find that the goods have been described as mix metal scrap which on examination, and on chemical test by the Chemical Examiner, was found to be brass scrap of Admiralty grade and therefore, cannot be considered as mix metal scrap. We however, find merit in the plea of the appellant that in the bill of entry, they have themselves claimed tariff value under Notification No. 52/2002, dated 16-8-2002 and further that since they were entitled to duty free clearance of the import of scrap, they could not have any intention of mis-describing the goods. In view of this, we set aside the confiscation and penalty imposed on the appellant. The enhancement of the value is not disturbed. The appeal is therefore, allowed by setting aside the penalty and the redemption fine. (Order dictated and pronounced in the open Court on 16-1-2007)
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2007 (1) TMI 490 - CESTAT AHMEDABAD
Refund - Limitation - Protest payment - General law does not apply even if duty/cess was collected without authority of law - Excise/customs duty refund claims
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2007 (1) TMI 488 - CESTAT, AHMEDABAD
Rectification of mistake application - Refund ... ... ... ... ..... s also held that ldquo therefore the appellants had sought amendment to the assessment before the Assistant Collector of Customs himself and it was in that light that the issue had to be decided rdquo . 7. emsp It could thus be seen that in the case of Karnataka Power Corporation Limited, the issue relating to the classification of the item in the said case was being taken right from the initial stage of adjudication with a specific request to re-classify the product. These facts have been specifically noted in the order of the Hon rsquo ble Supreme Court. 8. emsp In arriving at the decision dated 28-6-2006 of the Tribunal, there is no error in following the ratio of the Hon rsquo ble Supreme Court in the case of Priya Blue Industries Limited (cited supra) and we also take note of the fact that the order of the Tribunal was subject to further appellate remedies. 9. emsp Therefore this application for rectification of mistake is rejected. (Dictated and Pronounced in the Court)
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2007 (1) TMI 487 - CESTAT, AHMEDABAD
Penalty - Suppression of facts ... ... ... ... ..... reliance on the provisions of Section 11B(2) of the Act will not help the case of the appellants. The explanation to Rule B(2) provides that sub-section 2 shall not apply where the duty was not paid on willful suppression of facts. In the present case, as the appellants were manufacturing and clearing the goods after availing the benefit of small scale benefit notification and in respect of the branded goods, the appellants were not paying and duty. Therefore, I find force in the arguments of the Revenue. As the appellants are liable to penalty under Section 11AC of the Central Excise Act and the Hon rsquo ble Gujarat High Court held that the assessing authority has authority to impose lesser amount of penalty, therefore, keeping in view the facts and circumstances, the penalty imposed under Section 11AC is reduced to Rs. 15,000/-. Otherwise the impugned order is upheld. The appeal is allowed as indicated above. (Order dictated and pronounced in the open Court on 24-1-2007).
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2007 (1) TMI 486 - CESTAT, AHMEDABAD
Penalty - Imposition of ... ... ... ... ..... hat the waste and scrap is not chargeable to excise duty. The contention is also that the appellant is a State Government company, hence there cannot be any motive to evade duty. Keeping in view the facts and circumstances of the case as the duty has already been paid before the issuance of the show cause notice and the appellants were under the bona fide belief that waste and scrap are not chargeable to duty we find it is not a fit case for imposition of penalty. Accordingly, the impugned order is modified to this extent. (Dictated and pronounced in the Open Court)
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2007 (1) TMI 485 - CESTAT, AHMEDABAD
Penalty - Imposition of - Production capacity based duty ... ... ... ... ..... uivalent to the amount of duty outstanding from him at the end of each month of Rs. 5,000/- whichever is greater. In the present case, the duty was paid on 31-7-1999 along with interest. After 31-7-99, nothing was due against the appellant in respect of the duty determined under the Compounded levy Scheme. Therefore, in view of the proviso to Rule, as nothing was due at the end of the month, penalty of Rs. 3 lakhs on the appellant is not sustainable and hence the same is set aside. 4. emsp In respect of the penalty of Rs. 10,000/-, Rule 96 ZQ(4) of Central Excise Rules provides that independent processor shall continue to maintain record and file necessary returns etc. prescribed under the Rules. As in the present case, as the appellant was not maintaining proper record and is therefore liable for penalty. The impugned order imposing penalty of Rs. 10,000/- is upheld. The appeal is disposed of as indicated above. (Order dictated and pronounced in the open Court on 16-1-2007).
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2007 (1) TMI 484 - CESTAT, AHMEDABAD
Order of Appellate Tribunal - Modification of order ... ... ... ... ..... hearing to a Larger Bench, it does not in any manner dilute the ratio of the decision in Favourite Food Products (supra) on the basis on which the interim order was made, while also resting the order on the fact that the applicant in its initial declaration had classified the product under heading 1904.10. Referring those appeals to a Larger Bench cannot by itself constitute a change in circumstances so as to warrant modifying the interim order. The ratio of the decision of the Division Bench continued to operate, notwithstanding the reference and there is no change in circumstances to justify any modification on that count. Since the pre-deposit was not made, the appeal stood dismissed on 12-12-2006. 6. emsp We, therefore, do not find any valid reason to modify the impugned order requiring the pre-deposit or to restore the appeal for that purpose. The present application is without any substance and is hereby rejected. (Dictated and pronounced in the open Court on 11-1-2007)
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2007 (1) TMI 483 - CESTAT, AHMEDABAD
Exemption - Conditional exemption ... ... ... ... ..... s are meant for use in leather industry. 4. emsp We find that the Hon rsquo ble Supreme Court while interpreting the Notification No. 224/85 which is similarly worded as the present notification i.e. 23/98-Cus. held that the importer, who avail the benefit of this notification has to show that the imported goods are meant for intended purpose specified in the notification. The present notification permits to import the goods for use in leather industry without payment of duty. Therefore, the present respondent who imported the goods has to adduce the evidence to show that the imported goods were meant for use in leather industry. Therefore, the impugned order is set aside and the matter is remanded to the adjudicating authority to decide the matter afresh in the light of the above cited decision of the Supreme Court after affording reasonable opportunity of personal hearing to the respondents. The appeal is allowed by way of remand. (Dictated and pronounced in the Open Court)
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2007 (1) TMI 482 - CESTAT, AHMEDABAD
Production capacity based duty - Annual capacity of production ... ... ... ... ..... ntions were on legal issue only and no issue regarding re-fixation was raised. Further, we find that the reliance of the appellants on the decisions of the Tribunal will not help the appellants as in the case of Ganesh Steel Re-rolling Mills (P) Ltd. the order is an interim order passed on the stay application which is not binding in nature. In the second case of Sri Durga Cement Co. (supra) the assessee challenged the order of fixation of Annual Capacity of Production passed by the Commissioner whereas in the present case the order filing the Annual Capacity of Production has not been challenged. Therefore, ratio of that decision is also not applicable on the facts of the present case. As the determination of Annual Capacity of Production by the Commissioner is not challenged and the consequential demand in pursuance to that order is rightly made impugned order. In view of this we find no merit in the appeal. The same is dismissed. (Dictated and pronounced in the Open Court)
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2007 (1) TMI 481 - CESTAT, AHMEDABAD
Clandestine removal - Evidence ... ... ... ... ..... hine was out of order the weighment was made manually and mentioned in the rough sheet. Thereafter, cartons were weighed on the electronic machine and actual weight was entered in the private record which was further reflected in the statutory record. The carton number mentioned in rough sheet is further reflected in the private record is only small variation in the weight which is natural because earlier the cartons were weighed manually and thereafter weighed on electronic machine. Shri Patel in his statement never admitted that the quantities mentioned in rough sheet are cleared without payment of duty. In view of the explanation given by the excise clerk at the time of visit and in absence of any evidence that the quantities mentioned in rough sheet are cleared without payment of duty the demand is not sustainable hence set aside. Accordingly, both the appeals are allowed with consequential relief, if any in accordance with law. (Dictated and pronounced in the Open Court)
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2007 (1) TMI 480 - CESTAT, AHMEDABAD
Cenvat/Modvat - Capital goods ... ... ... ... ..... d sub-heading No. 6801.10 of the First Schedule to the Tariff Act (ii) pollution control equipment (iii) components, spares and accessories of the goods specified at (i) and (ii) above (iv) moulds and dies (v) refractories and refractory materials (vi) tubes and pipes and fittings thereof and (vii) storage tank, used in the factory of the manufacturer of the final products, but does not include any equipment or appliance used in an office rsquo Cylinders are used for storage of gases which are further used for production in the factory. This aspect is not disputed by the Revenue. As per the definition of capital goods storage tank used in the factory of manufacture of final product are eligible for Modvat Credit as capital goods. As in the present case cylinders are used for storage of High Pressure gas used in the factory of production they are entitled for credit. Accordingly, impugned order is set aside and the appeal is allowed. (Dictated and pronounced in the open Court)
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2007 (1) TMI 479 - CESTAT, AHMEDABAD
Confiscation - Misdeclaration of description of goods ... ... ... ... ..... n as well as value even though it was accepted that the Brass scrap was required to be assessed at the tariff value fixed by the Government. We hold that once the respondents have declared that the goods may be assessed at the tariff value fixed by the Government there cannot be any intention to evade duty and the mis-declaration cannot be said to be deliberate but out of mis-understanding. Since both, the Mix Metal scrap and the Brass scrap are freely importable, confiscation cannot be upheld under Section 111(d) of the Customs Act, 1962. Similarly, in respect of value the help of contemporaneous import can be taken only for the purpose of assessment and not for the purpose of establishing misdeclaration unless it is supported by some corroborative evidence. In the absence of the some charge misdeclaration of value cannot be upheld. 4. emsp In view of the above we find no merit in the appeal, and accordingly the same is dismissed. (Dictated and pronounced in the Open Court.)
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2007 (1) TMI 478 - CESTAT, AHMEDABAD
Cenvat/Modvat - Documents for availing credit ... ... ... ... ..... the cover documents showing all required details and that manufacturer rsquo s depots have also attached invoices/gate passes under which they received goods from manufacturer. 5. emsp On department rsquo s appeal, the Commissioner has held the same view and dismissed the appeal by the department. The Commissioner has taken a view that there was no provision in the rule that the invoice should be in the name of the buyer who was using the material contained in the invoice and also held that the credit cannot be denied on account of minor defect in the invoices. 6. emsp It is the concurrent findings of the adjudicating authority and the Commissioner (Appeals) that the omission if any, were curable defects and the substantive benefit should not be denied. We find that no valid ground has been adduced for interfering with the order of the Commissioner (Appeals). 7. emsp Therefore, the department rsquo s appeal is rejected. (Dictated and pronounced in the open Court on 12-1-2007)
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2007 (1) TMI 477 - CESTAT, AHMEDABAD
Penalty - Undervaluation ... ... ... ... ..... t the outset it appears to be a case of ignorance in not appreciating the changes in law. In the facts and circumstances of the case, there could be no intention to evade payment of duty. In fact, as rightly pointed out by the learned Advocate for the appellants, the appellant company has agreed to pay higher duty even in respect of inputs cleared as such to the other units. This also will go to show their bona fides. In addition, there is no specific failure attributed to the officers of the company who have been penalized. They are not disputing the differential duty paid by the appellant company as the duty paid has already been taken as credit by other units. Penalties imposed on the company and on the Executive Director, General Manager and the Authorised Signatory are not sustainable. 8. emsp Accordingly the Commissioner rsquo s (Appeals) order imposing penalties on these persons is set aside. 9. emsp All these appeals are allowed. (Pronounced and Dictated in the Court)
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2007 (1) TMI 476 - CESTAT, AHMEDABAD
Penalty - Imposition of, invocation of wrong section ... ... ... ... ..... he Customs Act and there is a proposal for imposition of penalty under Section 112 of the Customs Act. If the appellant is not challenging the confiscation then the provisions of Section 112 gets attracted for imposition of penalty. It is settled law that invocation of the wrong section would not be in itself detrimental to the case if from records it can be concluded that penalty is imposable. If it is held that the goods are liable for confiscation under Section 111 of the Customs Act, then penalty is imposable under Section 112. 6. emsp As I have already held that the appellant may have been misled in purchasing the goods, the penalty imposed on the appellant seems to be on the higher side. Hence, considering the totality of the circumstances of the issue, the penalty imposed on the appellant is reduced to Rs. 3.0 lacs (Rupees Three Lacs only). The impugned order is modified to this extent and the appeal of the appellant is allowed partly. (Pronounced in Court on 5-1-2007)
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2007 (1) TMI 475 - CESTAT, MUMBAI
Appeal to Commissioner (Appeals) - Limitation ... ... ... ... ..... , whereas in the present case, the delay is of 50 days in filing the appeal before the Commissioner (Appeals). The Commissioner (Appeals) has, therefore, dismissed the appeal as time barred. 3. emsp The order of the Hon rsquo ble High Court of Delhi in the case of Raja Mechanical Co. Pvt. Ltd. v. CCE, reported in 2002 (144) E.L.T. 36 (Del.) and the Tribunal rsquo s Larger Bench decision in the case of Maithan Ceramic Ltd. v. CCE, Jamshedpur reported in 2002 (145) E.L.T. 394 (T-LB) have, inter alia, held that when the Commissioner (Appeals) has dismissed the appeal on the ground of time bar and the delay is beyond of his power to condone, the Tribunal cannot condone the delay. 4. emsp Since, in the present case, the appeal has been dismissed by the Commissioner (Appeals) on the ground of time bar, following the ratio of the aforesaid decisions, I do not find any merits in the appeal filed by the appellants. The same is, accordingly, dismissed. (Pronounced in Court on 5-1-2007)
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2007 (1) TMI 474 - CESTAT, AHMEDABAD
Show cause notice - Jurisdiction ... ... ... ... ..... r before the Commissioner (Appeals). On this ground, I feel that the order is vitiated and therefore deserves to be set aside with a direction to consider the matter afresh. Accordingly the order of the Commissioner (Appeals), in so far as the present appellants are concerned, is set aside and the matter is remanded to the original authority to consider afresh the issue of confiscation of the goods clandestinely removed from the appellant company and seized outside the 100 EOU. If the goods are held liable to confiscation, he shall also consider giving the option of redemption to the owner person from whose possession the goods have been seized. He shall also consider penal action on the concerned persons in respect of offences relating to such seized goods committed outside the jurisdiction of the 100 EOU. 10. emsp The appellants should be given a reasonable opportunity of being heard. 11. emsp Appeals are allowed by way of remand on the above terms. (Dictated in the Court.)
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2007 (1) TMI 473 - CESTAT, AHMEDABAD
Cenvat/Modvat - Inputs - Handling materials like plastic crates ... ... ... ... ..... stion are inputs and covered by this common phrase. The difference between the exemption and the exclusion lies in the phrases used for producing or processing of any goods and goods for bringing about any change in any substance occurring only in the exclusion. These operative words in the exclusionary clause used for producing or processing and bringing about any change in any substance, must mean something less than used in or in relation to the manufacture of the final products. The Tribunal has said that the operative phrases in the exclusion indicated direct or immediate use in actual production or processing of goods or bring about any change in any substance. We agree some mentioned characteristics. They are therefore, exempted from payment of excise duty under the 1986 Notification 6. emsp In view of the above settled position of law, we find no infirmity in the impugned order. The appeals are dismissed. (Order dictated and pronounced in the open Court on 25-1-2007).
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2007 (1) TMI 472 - CESTAT, AHMEDABAD
SSI Exemption - Registration with Industry Ministry ... ... ... ... ..... f all excisable goods during the financial years 1987-88 and 1988-89 did not exceed rupees one hundred and fifty lakhs. rdquo 5. emsp It is admitted fact that the appellants availed the benefit of notification for the financial year 1989-90. Therefore, in view of the provisions of Para 4 of the Notification, the appellants are entitled for the benefit of notification for the subsequent financial year also. Further, we find that the Tribunal, in the decision relied by the appellants, allowed the benefit of small scale benefit of Notification No. 175/86 to the assessee who avail the benefit of notification during the financial year and for the subsequent financial year when they were not registered with the Director of Industries as a small scale unit. In view of the above discussion, denial of benefit of notification to the appellants is not sustainable. The impugned order is set aside and the appeals are allowed. (Order dictated and pronounced in the open Court on 16-1-2007).
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2007 (1) TMI 471 - CESTAT, AHMEDABAD
Electrical laminations ... ... ... ... ..... s which are classifiable under Heading 85 of the Customs Tariff Act, therefore electrical lamination being parts of transformer are also classifiable under Heading 85 of Tariff. Hence the respondents are entitled to the benefit of notification. 5. emsp The Revenue relied upon the decision of the Tribunal in the case of Hical Magnetics (P) Ltd. v. CCE, Bangalore - 2000 (116) E.L.T. 570 to submit that the electrical laminations made to specific size are classifiable under sub-heading 8312.00 of Central Excise Tariff Act and not under Heading 85.04 of the tariff and the Customs Tariff is also similarly worded. 6. emsp We find that the respondents used the imported goods in the manufacture of electrical laminations which are not classifiable under heading 85 of the Customs Tariff in view of above decision of Tribunal. Therefore, the respondents are not entitled to the benefit of the notification. The impugned order is set aside and the appeal is allowed. (Pronounced in the court)
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