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Central Excise - Case Laws
Showing 21 to 40 of 246 Records
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2007 (4) TMI 672
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... ... ..... le article by the assessee was wrong. The appeal is accordingly dismissed. C.A. No. 3439-3442/2004 & C.A. No. 215/2007 In view of the decision of the first case, it is not necessary to await service in other matters. The appeals are accordingly dismissed.
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2007 (4) TMI 669
Whether the confessional statement would continue to hold good even if the accused is acquitted under TADA offences and there is a clear finding that TADA Act has been wrongly taken recourse to or the confession loses its legal efficacy under the Act and thus rendering itself to an ordinary confessional statement before the Police under the general law of the land?
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2007 (4) TMI 668
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... ... ..... s (a) and (b) of Notification No. 41/99-C.E. are to be read together and that the conditions are mandatory and not mere procedural. The Tribunal further held that the date of undertaking under Notification No. 41/99-C.E. is the date on which the Assistant/Deputy Commissioner receives the undertaking and not the date on which the manufacturer sends the undertaking, hence exemption under Notification ibid was held as not available for the period for which undertaking was not given.
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2007 (4) TMI 617
Whether Beta Visipreg, Visipreg Strip, Pregnancy Test Card fall as “antisera” under Chapter Heading 30.02 of CETA (according to the assessee) or whether it falls under Chapter Heading 38.22 of CETA as “diagnostic or laboratory reagent” (as contended by the Department)?
Held that:- “Blood fractions” fall under Chapter Heading 30.02. Chapter Heading 30.02 refers to “blood fractions”. Merely because the medium used is latex (rubber) or paper, will not bring the items under Chapter Heading 38.22. Once an item is a “Blood Fraction” it falls under Chapter Heading 30.02. The medium is irrelevant. The medium could be paper or rubber. The configuration of the product and the function are important. In our opinion, Item Nos. 1 to 15 are “Blood Fractions”. They are “Blood Fractions” even according to the Department.
In the circumstances, we classify Item Nos. 1 to 15 of Annexure B to the paper book under Chapter Heading 30.02 (CSH 3002.00).
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2007 (4) TMI 605
Appeal to Appellate Tribunal - Restoration of ... ... ... ... ..... s that the appeals shall be disposed of on merits and not on the preliminary point of deposits. In any case, we find that Tribunal, while dismissing the appeals, has decided upon the merits of the impugned order passed by the Commissioner (Appeals) and held the same to be correct in terms of the settled position in law. Tribunal having observed that the appeal was rightly dismissed by the Commissioner (Appeals) as barred by limitation, is dealing with the merits of the appellants rsquo appeal and is not dismissing their appeals on limitation, as contended by the learned Advocate, in as munch as there was no delay in filing of appeal before the Tribunal. As such, the Hon rsquo ble High Court directions to dispose of the appeals on merits stand fully complied with. No mistake can be said to have occurred, requiring any restoration of the appeals or rectifying any mistake. 4. emsp In view of the above, we dismiss both the applications. (Dictated and pronounced in the open Court)
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2007 (4) TMI 604
Rectification of mistake (ROM) - Refund ... ... ... ... ..... he above issue relates to verification of fact I direct the original adjudicating authority to verify the above fact. If the deposit has been made by debiting the modvat credit account and during that period, the appellant had paid duty out of PLA, which they could have paid by using the said credit, then the amount would be refunded to them in cash, inasmuch as the appellants are not working under modvat scheme any more. However, if the said amount of modvat credit was overflowing in their records and was debited and the appellant was not in a position to use the same, the refund has to be made by crediting modvat account only rdquo . 3. emsp ROM application is disposed of in the above terms. (Pronounced in the open Court)
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2007 (4) TMI 601
Penalty - Quantum of - Imposition of ... ... ... ... ..... , the amount of penalty shall be 25 of the duty confirmed. By taking note of all the above facts, we reduce the personal penalty of Rs. 7,00,131/- to Rs. 1.75 lakhs. However, we do not find any justifiable reason to impose a separate penalty upon the Director especially when no provisions section/rule of law under which penalties has been imposed upon the Director stand specified in the impugned order of the Joint Commissioner. We also take note of the observations made by the Commissioner (Appeals) that the grey fabrics were sent by the various applicants herein, who are shopkeepers of M/s. Sagar Dyg. and Ptg. Mills under the cover of grey challan. As such, duty evasion by M/s. Sagar Dyg. and Ptg. Mills should not result in imposition of penalty upon the various shopkeepers. Accordingly, we set aside the penalties of Rs. 5000/- imposed upon each of the other applicants in terms of provision of Rule 26 of the Central Excise Rules, 2002. (Dictated and pronounced in open Court)
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2007 (4) TMI 600
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... ... ..... ght charges, which are on account of equalized freight are not to be added in the assessable value of the goods even after the amendment in the provisions of Section 1 extending the term ldquo place of removal rdquo to the depot, as held by Hon rsquo ble Supreme Court in case of VIP Industries Ltd. reported in 2003 (155) E.L.T. 8 (S.C.). As such, it is seen that in either case, i.e. irrespective of the fact whether the said freight charges are for movement of the goods from factory gate to the depot or from depot to the customer rsquo s premises, are not required to be added in the assessable value of the goods wherever the price of the final product remains uniform, all over the country. As such, we find that without going into the controversy of the factual position, the appellants are entitled for relief on the above legal point. We, accordingly, set aside the impugned order and allow the appeal with consequential relief to the appellant. (Pronounced in Court on 24-4-2007)
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2007 (4) TMI 599
Appeal to Appellate Tribunal - Limitation ... ... ... ... ..... tion for condonation of delay but very vaguely stated some delay was caused. Further, attitude of the appellant is noticeable from para lsquo B rsquo which states that the order was misplaced and was traced on 14-2-07. This attitude shows scanty regard to law by the appellant. No doubt Tribunal appreciates that filing an appeal belatedly does not benefit the litigant but may deprive him from right to justice. Equally, the Tribunal appreciates that scanty regard to law by litigant is not tolerable. The appellant has to come out clearly to prove his bona fides as well as non-deliberate delay making out clear case for relief. In view of these circumstances stated above neither the appellant was found to be vigilant nor proved its bona fide for which it does not deserve any consideration for condonation of delay. Accordingly, the Delay Condonation petition is dismissed as well appeal dismissed. Stay Petition is also disposed off accordingly. (Dictated and pronounced in the Court)
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2007 (4) TMI 597
Rectification of mistake - Subsequent proceeding in other case ... ... ... ... ..... ad rejected the appeal on the point of time bar. As such, the matter was remanded to the Commissioner (Appeals) to decide the limitation aspects afresh. It does not mean that the Commissioner (Appeals), after holding that the appeal was filed in time before him would not proceed to decide the matter on merits. If the revenue or the assessee is aggrieved by the said order of the Commissioner (Appeals) passed in de novo proceedings, they are at liberty to file an appeal there against before the Tribunal. The Tribunal having disposed of first appeal No. E/3709/05 filed by the assessee, cannot re-call the same on the ground that the Commissioner in subsequent proceedings have not decided the issue on merits. We find no merits in the revenue rsquo s prayer for re-calling of earlier order and deciding the appeal afresh on merits, which job was required to be done by the Commissioner (Appeals) in de novo proceedings. ROM application is disposed of in above terms. (Dictated in Court)
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2007 (4) TMI 596
Confiscation and penalty - Demand - Premises leased to 100% EOU ... ... ... ... ..... roduction and clearance by the appellant. Therefore, confiscation and further demand of duty is set aside. rdquo 5. emsp As is clear from above, the fact that 100 EOU had vacated premises is not being doubted by Revenue and the demand is being confirmed on the sole ground that said 100 EOU which was operating from above premises has not been de-bonded. The revenue rsquo s objection is that an EOU can exit from the scheme only when the Development Commissioner passes the final de-bonding order. However, I find that the respondent unit working from the premises was admittedly not 100 EOU and the premises were vacated by the earlier EOU. The job work taken up by present respondent, who was admittedly not 100 EOU, merely he was working from same premises, does not automatically make him liable to pay duty. Accordingly, I feel that Commissioner (Appeals) rsquo s order is fair and just and does not require any interference. Appeal filed by Revenue is rejected. (Pronounced in Court)
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2007 (4) TMI 594
Penalty - Revenue neutrality ... ... ... ... ..... y. However, he has upheld the personal penalty on the ground that such type of practice cannot be appreciated as the same would lead to lot of inconvenience to the department. 3. emsp Learned advocate appearing for the appellant explained that as their regular excise clerk was on leave, 10 of the duty amount was debited by them instead of 10 value of the input. In any case, he submits that the entire situation being Revenue neutral, there was no undue benefit to the appellant and as such imposition of penalty is unjust and unjustified. On being asked, he clarified that this has happened only once and there is no such practice being followed by them. 4. emsp In view the above, I find no justification for imposition of penalty, especially when the entire exercise being Revenue neutral and the demand having been held as unsustainable against them. Accordingly, I set aside the same and allow the appeal with consequential relief to the appellant. (Dictated and Pronounced in court)
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2007 (4) TMI 593
Appeal by Department - Authorization for filing appeal ... ... ... ... ..... this is not in conformity with the provisions of Section 35B (2) of the Central Excise Act, 1944 which envisages that the Committee of Commissioners direct filing of appeal by any of the Central Excise officers authorized by him in this behalf. 2. emsp The learned DR submits that this is only a procedural aspect and the Commissioner being an officer senior to Joint Commissioner can exercise the power and functions of the Joint Commissioner. Alternatively, he seeks permission to rectify the error. 3. emsp Prima facie, I do not find merits in this submission made by the learned Advocate for the respondent. At any rate, I hold that this is an error which could be rectified. No prejudice can be caused to the respondent by allowing this amendment. Therefore, the department is permitted to file amended appeal as per directions of Committee of Commissioners within 45 days from today. Preliminary objection is disposed of in the above terms. (Dictated and pronounced in the open Court)
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2007 (4) TMI 591
Appeal to Appellate Tribunal ... ... ... ... ..... ough the petition for modification was not accepted, in the interest of justice, further time was given for complying with the order, and still the applicant has not complied with the order. The applicant has chosen to deposit much belatedly i.e. nearly after one year and this conduct goes to show lack of respect to and lack of willingness to obey the orders of the Tribunal. If the prayer for restoration is routinely accepted it can lead to very many similar applications in future. This could lead to avoidable delay in the resolution of dispute. Therefore, this type of delay tactics should be curbed. 6. emsp In the interest of justice, while we would like to restore the appeal we would like to put the applicant to some further terms of deposit. Appeal is restored to its original number and we order that applicant shall further make deposit of Rs. 2 lakhs (rupees two lakhs) within eight weeks from today and report compliance on 3-7-2007. (Pronounced in open court on 27-4-2007)
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2007 (4) TMI 590
Confiscation, penalty and redemption fine ... ... ... ... ..... for waiver of redemption fine and penalty. 4. emsp Learned SDR submits that such huge quantity of excess stock lying unaccounted, cannot be treated as due to clerical mistake and that the redemption fine imposed is not excessive and penalty is rightly imposed. 5. emsp I have carefully considered submissions of both sides. 6. emsp The explanation given for non-accountal of such huge quantity of voluminous goods though interesting but is not at all convincing. At the same time, there is no evidence on record about clandestine removal. The confiscation of unaccounted goods deserves to be upheld. Penalty is also warranted. However, taking into consideration the entire facts and circumstances of the case and showing some leniency, redemption fine is reduced from Rs. 1 lakh to Rs. 25,000/-. The penalty of Rs. 5,000/- imposed cannot be considered to be excessive and therefore not interfered with. 7. emsp Appeal is partly allowed on the above terms. (Dictated and pronounced in Court)
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2007 (4) TMI 589
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... ... ..... superceded by subsequent Circular No. 813/10/2005-CX, dated 25-4-05. The authorities below in the case of Meridian Enterprises have followed the subsequent Circular on the ground that the same will be retrospective in nature and would cover the period involved in the present appeals. 3. emsp The Tribunal while deciding the identical issue in the case of Alkem Laboratories Ltd. vide Order No. A/1481 to 1483/WZB/06/C-III/EB, dated 17-7-06 2006 (203) E.L.T. 102 (Tri.) has held that inasmuch as the Circular was in effect during the time, valuation has to be arrived at in the light of the said Circular and Department cannot apply the new Circular for the retrospective period. 4. emsp In view of the above, we set aside the impugned orders and remand all the matters to the original adjudicating authority for fresh decision in the light of the ratio of the Larger Bench as well as the subsequent decision in the case of Alkem Laboratories Ltd. referred supra. (Pronounced in open Court)
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2007 (4) TMI 588
Demand - Clandestine removal ... ... ... ... ..... stody the vouchers seems to have been recovered, has been recorded. Further, there is no investigation and verification at the octroi check post. The above evidence cannot be said to be clinching enough so as to uphold the charge of clandestine removal. It is well established that charges of clandestine activities are required to be based upon the sufficient, tangible and affirmative evidence. As such, we find no justification in confirmation of demand on this court. 8. emsp As regards confirmation of demand in respect of Annexure ldquo C rdquo , we find absolutely no basis for the same. The Commissioner has simply observed that the Central Excise Officers have scrutinized and sorted out 21 gate passes indicating decimalization of the same. The above findings are without any cogent reason and are not based upon any evidence whatsoever. 9. emsp In view of the above, we set aside the impugned order and allow the appeal filed by the appellants. (Pronounced in Court on 18-4-2007)
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2007 (4) TMI 587
Appeal to Commissioner (Appeals) - Maintainability of - Appealable order ... ... ... ... ..... is seen that Commissioner rsquo s order of rejection of remission does not stand challenged by the appellant. As such, they are bound by the consequences of the same. I agree with the observations made by Commissioner (Appeals) that the order of Dy. Commissioner confirming the demand of duty was set aside on the short ground of lack of jurisdiction inasmuch as appellate authority has observed that duty becomes payable in terms of Commissioner rsquo s order of rejection of remission application. Inasmuch the Commissioner rsquo s order has not been set aside by higher forum, the appellant rsquo s duty liability would be decided in accordance with the same. 6. emsp However, in view of my earlier observations that appeal before Commissioner (Appeals) was not maintainable having been filed against the letter of recovery of dues by Supdt., I hold that the present appeal also does not survive. The same is, accordingly, rejected on the above ground. (Dictated and pronounced in Court)
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2007 (4) TMI 586
Cenvat/Modvat - Documents for availing credit ... ... ... ... ..... precautions they had taken as envisaged in terms of Rule 7(2) of the Cenvat Credit Rules. These points have been urged by them before the original authority and before Commissioner (Appeals). In addition, he has produced a certificate from the Bank of Baroda which furnished the details about the collection of an amount of Rs. 1,15,870/- on 3-10-2003 paid by M/s. Oshi Export, supplier in this case. 3. emsp In the light of the above evidence I hold that the appellant has taken sufficient precautions as in terms of Rule 7(2) of Cenvat Credit Rules, 2002 and the credit taken by the appellant is in order. 4. emsp The appeal is allowed with consequential relief. (Dictated and pronounced in the open Court)
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2007 (4) TMI 585
Penalty - Delay of one day in payment of duty - Compounded Levy Scheme ... ... ... ... ..... lly considered the submission by both sides. The Hon rsquo ble Gujarat High Court in the case of Parmeshwar Dyeing and Printing Mills Pvt. Ltd. v. Union of India - 2005 (191) E.L.T. 86 (Guj), has held, in similar circumstances, that imposition of penalty equal to the duty outstanding is not warranted and it should be commensurate with the gain, if any, made by the party. 7. emsp We find that there is a delay of one day in each of these cases in paying the dues. We do not find any intention whatsoever to evade the duty liability as is evident from the fact that the amounts have been paid promptly on the very next day. Following the ratio laid down by the Hon rsquo ble High Court of Gujarat in the case of Parmeshwar Dyeing and Printing (supra) and keeping in mind the minimum prescribed penalty under Rule 96ZQ(5)(ii), we reduce the penalty to Rs. 5,000/- in respect of the appellant in each of the above cases. 8. emsp The appeals are partly allowed as above. (Pronounced in Court)
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