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Case Laws
Showing 161 to 180 of 632 Records
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2006 (1) TMI 513 - CESTAT, MUMBAI
... ...
... ... ..... in standard prophylactic and therapeutic use and quantities added to maintain prophylactic activity they therefore are to be classified under heading 3003.10. The appellants have also relied upon the decisions of the Larger Bench of this Tribunal in the case of Micropure Parenterals Pvt. Ltd. v. CCE, Mumbai-III 2005 (190) E.L.T. 23 (Tri. - LB) 2005 (71) RLT 129 (T-LB) and in the case of Softsule Limited v. CCE, Mumbai-II - 2002 (146) E.L.T. 418 (Tri.-Mum.) which has been upheld by the Hon rsquo ble Supreme in Civil Appeal No. D22212 of 2002 on 16-12-2002 reported at 2003 (156) E.L.T. A212 (S.C.) (Commissioner v. Softesule Ltd.). Following the ratio of the judgment of Apex Court, the products are classified under chapter heading 3003.10 of the CETA, 1985 excluding the mouthwash. As regards penalty, we do not find any reason to impose any penalty on the appellants and the order of the penalty is set aside and the appeals are allowed in the above terms. (Pronounced in the court)
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2006 (1) TMI 512 - CESTAT, BANGALORE
Valuation - Confiscation, penalty and fine ... ... ... ... ..... nts have produced evidence of contemporaneous import at US 800 per MT of the same goods imported in Mumbai Customs. This evidence is accepted. Even accepting this evidence, there is a mis-declaration of value in as much as the appellants had declared the value at US 400 per MT. Therefore, the enhancement of value is justified. In view of the mis-declaration, the order of confiscation and imposition of fine and penalty is required to be upheld. We find that the RF and penalty imposed in the present matter is itself very low and does not require any further reduction even by taking the value of US 800 per MT. In the result, we order that the value of the imported Dried Ginger is to be adopted at US 800 per MT and that the fine and penalty as imposed in the impugned order is required to be confirmed. The impugned order is modified to the extent indicated and the appeal allowed on such terms. (Operative portion of this Order was pronounced in open Court on conclusion of hearing.)
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2006 (1) TMI 511 - CESTAT, BANGALORE
Penalty - Smuggled goods ... ... ... ... ..... gone to Dubai for these activities. The investigations have revealed that the appellant had been visiting Dubai. The details have been obtained from Mumbai airport about his movement from Mumbai to Dubai. In view of enormity of evidence against the appellant, the plea that he is innocent cannot be accepted. The charge of the appellant being involved in the act of smuggling has been established. He is liable for penalty. However, taking into consideration the value of the goods to be only Rs. 80,000/-, and the fact that the other persons involved in the act of smuggling have been imposed with a penalty of Rs. 25,000/- and Rs. 10,000/-, it is but proper that the penalty in the present case is scaled down to Rs. 10,000/-. The impugned order, imposing penalty of Rs. 10 lakhs on the appellant is, modified to Rs. 10,000/- (Rupees Ten thousand only). The appeal is disposed of in the above terms. (Operative portion of this Order was pronounced in open Court on conclusion of hearing)
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2006 (1) TMI 510 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Demand - Valuation ... ... ... ... ..... n terms of written agreement between the parties. We have reproduced the relevant clauses in Para - 2 above. We are, prima facie of the view that consultancy payments are in regard to other services and are not in regard to the goods sold. This is clear from the fact that the applicant is rendering a variety of assistance through the consultancy and oversight of the operations of the franchisees. This is made further clear by the fact that the payments are not dependent upon or relatable to the purchase of manufactured goods sold by the applicant but are in regard to the total turn over of a franchisee. We also feel that the decision of the judgment of the Apex Court in the case of Pepsi Foods Ltd. in regard to royalty payment for use of trademark has no application to the present case. 5. emsp In the view we have taken, pre-deposit is not justified. The same is waived and recovery is stayed till the disposal of the appeal. (Dictated and pronounced in open Court on 30-1-2006)
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2006 (1) TMI 509 - CESTAT, NEW DELHI
Import - Misdeclaration ... ... ... ... ..... vy Melting Scrap rdquo . Further I find, that, to implicate the appellant under the charge of mis-declaring the goods, no statements recorded, nor there are any antecedents of the appellant, having misdeclared the goods. Under the circumstances, the charge of intentional misdeclaration cannot be fastened to the appellant in this case. But, suffice to say that the appellant have also not taken due care to properly declare the goods imported by them, the declaration filed by them was found to be not in order. As the appellants have already paid duty as enhanced by the authorities, to my mind the appellants rsquo case need to be considered sympathetically and a lenient view has to be taken. 6. emsp In view of the same, the redemption fine imposed is reduced to Rupees one lakh and the penalty imposed is also reduced to Rupees twenty five thousand. With the above modification, the appeal is allowed partly. (Operative part of this order already pronounced in the Court on 31-1-2006)
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2006 (1) TMI 508 - CESTAT, CHENNAI
Refund - Limitation - Protest ... ... ... ... ..... of Rs. 27,647/- equivalent to the Cenvat credit reversed on 31-3-02 inasmuch as the assessee has no case that this reversal was made lsquo under protest rsquo . In this respect, they have contended that the pendency of the appeal against denial of similar credit for the period November, 96 to March, 2000 should be treated as a mark of protest. I am afraid, I am unable to accept this plea. Obviously, the concept being invoked by ld. Counsel is one of ldquo payment of duty under protest pending appeal rdquo . For invoking this concept against application of time-bar in relation to refund claims, it should be shown that the appeal is pending in respect of the period relevant to the payment of duty, refund of which is claimed. This requirement has not been fulfilled in this case. 6. emsp In the result, the impugned order is set aside except in respect of the claim for refund of duty of Rs. 27,647/-. The appeal stands allowed in part. (Order dictated and pronounced in open court)
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2006 (1) TMI 507 - CESTAT, NEW DELHI
Confiscation of goods - Mis-declaration - Excess goods ... ... ... ... ..... of Rs. 23,29,771/-. There is no correspondence or communication from the exporter that there is any mistake in sending the goods in excess under the two-invoices. The Bill of Entry was filed on 12-8-2004 and appellant first time on 16-8-2004 asked the exporter of the goods to supply remaining invoices. In these circumstances, when the consignment contains excess goods than the declared goods in the Bill of Entry and subsequently when the Revenue pointed out the excess the appellant filed additional invoices which were of the same date on which the earlier invoices were issued by the exporter. In these circumstances, I find no infirmity in the impugned order whereby the excess goods were confiscated. The reliance of the appellant on the decision of the Tribunal in the case of Titan Industries Ltd. v. Commissioner of Customs, Bangalore (Supra) will not help the case of the applicant as in that case only 3 was excess goods were found in the consignment. The appeal is dismissed.
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2006 (1) TMI 506 - CESTAT, BANGALORE
Appeal to Appellate Tribunal - Restoration of ... ... ... ... ..... t as a consequence of this cited High Court rsquo s order, the appeals are required to be restored to their original numbers. The learned Counsel also submits that the Tribunal had decided the issue against them in Appeal No. 941/04 and the Tribunal rsquo s order has been set aside, therefore the High Court rsquo s order is binding on the Bench. 3. emsp Heard the learned DR in the matter. 4. emsp On a careful consideration, we notice that the Tribunal in the assessee rsquo s own case had taken a view against them. The said order of the Tribunal was challenged before the Kerala High Court and the High Court has set aside the order and upheld the assessee rsquo s plea to deposit the duty through Cenvat credit. In view of this position, the final orders passed in the assessee rsquo s case are recalled and the appeals are restored to the original numbers. The ROA is allowed and the appeals to come up for final hearing on 22nd February 2006. (Pronounced and dictated in open Court)
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2006 (1) TMI 505 - CESTAT, CHENNAI
Appeal - Limitation ... ... ... ... ..... must be reckoned for the purpose of determining the question whether there was any delay in filing of the appeal by the assessee. It appears that the conduct of the appellant was bona fide and that they were pursuing their appeal carefully. In such circumstances, we are of the view that the question whether the assessee rsquo s appeal at the first appellate level was delayed or not should be determined with reference to the date of filing of their original appeal, particularly since the factum of such filing is not contested by the Department. Even the impugned order acknowledges the filing of the appeal by the assessee in the Commissionerate on 10-6-2002. Hence, after setting aside the impugned order, we direct ld. Commissioner (Appeals) to deal with the assessee rsquo s appeal on merits, subject, of course, to fulfilment of the requirement under Section 35F of the Central Excise Act. 4. emsp The appeal stands allowed by way of remand. (Dictated and pronounced in open Court)
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2006 (1) TMI 504 - CESTAT, NEW DELHI
Cenvat/Modvat - Capital goods ... ... ... ... ..... f India in the Ministry of Finance (Deptt. of Revenue) No. 68/89-Customs, dt. the 1st March 1989, and used in the factory of manufacturer. rdquo From the above it can be seen that at Sl. No. (ix) components, spares, and accessories of the goods specified in item 1 to 8 were eligible for availment of credit. I find from the order-in-original at para 13 the adjudicating authority has come to specific finding that ldquo these are chemical media for separation of H2S and allied sulphur impurities from intake air and are installed in D.G. sets. rdquo From the above finding it is very clear that the goods on which credit was availed was used along with D.G. set which were covered under the definition of capital goods, and hence, eligible for Modvat credit under Srl. No. (ix) as reproduced above. In view of the above, I do not find any merit in the case. Therefore, appeal filed by the department is liable to be dismissed. Appeal dismissed. (Dictated and pronounced in the Open Court)
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2006 (1) TMI 503 - CESTAT, BANGALORE
Production capacity based duty - Annual capacity of production ... ... ... ... ..... d. - 1991 (55) E.L.T. 433. Hence, he seeks for implementation of the Trade Notice No. 18/98 and grant them the relief. 3. emsp The learned SDR opposed the prayer and contended that the Commissioner has rightly confirmed the duty in the matter. 4. emsp On a careful consideration, we notice that the Tribunal, in the remand order, had clearly given direction to implement the Trade Notice No. 18/98, dated 7-4-1998 which provides for taking 1997-98 production figures instead of 1996-97 production figures. The Commissioner ought to have followed the remand order. The production figure for 1997-98 is 5253.94 MTs. Therefore, the Commissioner was not justified in adopting the production figure of 1996-97 of 7028.450 MTs. In terms of the earlier remand order, the appellants rsquo prayer for implementing the Trade Notice No. 18/98, dated 7-4-1998 is required to be accepted. As a consequence, the appeal is allowed with consequential relief, if any. (Pronounced in open Court on 24-1-2006)
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2006 (1) TMI 502 - CESTAT, CHENNAI
Exemption - Fulfilment of condition - Demand - Duty collected from customers ... ... ... ... ..... n the first case cited above, the relevant Notification stipulated that certificate from the Drugs Controller be produced by the assessee and the certificate produced by the assessee was one signed by the Deputy Drugs Controller. In the second case, Joint Director, Industries had issued the necessary certificate, instead of the Director. In both the cases, the certificates were accepted by the Tribunal. In view of the case law cited by the learned Counsel, we have to accept that the assessee has made out a prima facie case. 3. emsp Learned SDR submits that the assessee had collected duty from their customers but had not remitted the same to the Exchequer. If this is true, there should have been demand of duty under Section 11D but no such demand is seen to have been raised on the party in this case. 4. emsp For the reasons already noted, there will be waiver of pre-deposit and stay of recovery in respect of the duty and penalty amounts. (Dictated and pronounced in open Court)
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2006 (1) TMI 501 - CESTAT, NEW DELHI
Appeal before Commissioner (Appeals) - Limitation - Delay in filing appeal ... ... ... ... ..... and from the explanation (involving a fraudulent employee) being submitted only after being confronted with the date of actual receipt, I am convinced that the delay was not on genuine grounds and the appellant has not sought for condonation with clean hands. It is not merely a case of negligence or laches on the part of agent or appellant but a deliberate manipulation of the records to ensure that appeal is taken on record as filed in time and disposed. rdquo From the above it is very clear that the date of receipt of Order-in-Original was changed by the representative to show that their appeal was in time. The liability of the appellants cannot be brushed away by holding the person responsible who might have done on direction of some one. In view of the above I do not find any merit in the said application and the Order-in-appeal is correct and legal. 5. emsp In view of the above stay application as well as appeal are dismissed. (Dictated and pronounced in the Open Court.)
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2006 (1) TMI 500 - CESTAT, MUMBAI
Cenvat/Modvat - Inputs - Cells, button and solar ... ... ... ... ..... enue rsquo s contention is that the said cells are not inputs for the calculators, inasmuch as the cell can be bought by the customer from an outside source. 4. emsp After hearing both sides, I find that there is a finding by the appellate authority to the effect that value of these cells are included in the assessable value of the calculators. No objection is being raised by the revenue in respect of the inclusion of value. As such, the same have to be treated as inputs for the calculators, thus earning credit in terms of the Rule 57A. The Tribunal in the case of Jayashree Industries v. Collector of Central Excise, Rajkot, reported in 1993 (63) E.L.T. 492 (T.) 1992 (20) ETR 633 has held that the Modvat credit in respect of duty paid on dry battery cells fitted to the quartz clocks and time pieces is eligible. As such, I do not find any reason to interfere in the order of the Commissioner (Appeals). Accordingly, the appeal filed by the revenue is rejected. (Dictated in Court)
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2006 (1) TMI 499 - CESTAT, CHENNAI
Redemption fine and penalty ... ... ... ... ..... ly the cited decision, in the same rigour, to the facts of this case. 4. emsp However, the challenge against the quanta of fine and penalty seems to be well-founded. A fine of Rs. 5 lakhs in lieu of confiscation of goods valued at Rs. 11 lakhs is certainly on the higher side. Similarly, the penalty of Rs. 2.5 lakhs is also too high. In the determination of fine and penalty, the circumstances of the case will have to be taken into account. This is not a case of unauthorised importation of goods. It is a case of declaration of lesser value for the purpose of payment of lesser duty. There is no other offence found against the assessee. In the circumstances, the quanta of fine and penalty, in our view, should stand reduced to Rs. 1 lakh (Rupees One lakh only) and Rs. 50,000/- (Rupees Fifty Thousand only) respectively. It is ordered accordingly. The impugned order will stand modified accordingly. The appeal is disposed of in the above terms. (Dictated and pronounced in open Court)
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2006 (1) TMI 497 - CESTAT, NEW DELHI
Rectification of mistake - Mistake apparent on record ... ... ... ... ..... ns are filed in the Hon rsquo ble High Court. Further, I find that the Commissioner (Appeals) in the impugned order gave a finding of fact that supplier of the inputs paid appropriate duty and this finding of fact was not challenged by the Revenue in the grounds of appeal by producing evidence to show that this finding of fact is wrong. Further, in the grounds of appeal it was also mentioned that the reference applications were dismissed by the Hon rsquo ble High Court and Revenue is contemplating to file an appeal before the Hon rsquo ble Supreme Court. In these circumstances, I find no mistake apparent on record which requires rectifications in the Final order. The ROM is rejected. (Dictated and pronounced in open Court on 20-1-06)
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2006 (1) TMI 496 - CESTAT, NEW DELHI
Demand - Cenvat/Modvat - Penalty ... ... ... ... ..... iable on such waste and scrap. rdquo 6. emsp From the above, it is clear that duty could be levied only as applicable to waste and scrap. In the present order, duty has been demanded under the Heading applicable to capital goods. Those Headings do not mention waste and scrap. Therefore, the duty demand made is clearly unsustainable. 7. emsp There is also no ground to believe that the appellant had intention to evade payment of duty in the present case. Scrap arises in every organization and in dealing with their disposal, the consideration which arises is not one of evasion of duly but one of how to get rid of them with some incidental gains. The removal of these items was also in the open, inasmuch their clearances were entered in the accounts of the assessee. 8. emsp In the view we have taken above, the duty demand and penalty are not sustainable. They are set aside and appeal is allowed with consequential relief to the appellant. (Pronounced and dictated in the open Court)
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2006 (1) TMI 495 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Exemption ... ... ... ... ..... turbine fuel supplied to foreign aircraft under the Central Excise Act, during the period in dispute which is 1st January 2003 to 28th February 2003 and that such exemption from payment of central excise duty came into effect only with the issue of a notification dated 1-3-2003. 2. emsp We have heard both sides. 3. emsp We find prima facie force in the submission of the applicants that they are entitled to exemption under notification No. 3720 dated 18-11-2002 issued by the Ministry of Civil Aviation under Section 3 of the Foreign Aircraft (Exemption from Taxes and Duties on Fuel and Lubricants) Act, 2002. Therefore, although the notification under the Central Excise Act came into effect only from 1-3-2003, prima facie even for the period prior thereto, the applicants would be entitled to exemption in terms of the notification dated 18-11-2002 cited supra. We, therefore, waive pre-deposit of duty and penalty and stay recovery thereof pending the appeal. (Pronounced in Court)
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2006 (1) TMI 494 - CESTAT, NEW DELHI
Confiscation of conveyance - Contraband goods found in jeep ... ... ... ... ..... re not claimed by any person. Hence the complicity of the owner of the Jeep in transporting the contraband goods is not proved. In the absence of any evidence indicating the involvement of the owner of the Jeep in smuggling of the goods, the confiscation of the Jeep is not in accordance with the law. It is now a settled law that in the absence of any evidence that the owner and driver of the vehicle was in knowledge of the smuggled nature of the goods the vehicle is not liable for confiscation. In this case also, both the driver and the owner of the Jeep have categorically denied any knowledge of the smuggled nature of the goods and the department has not produced any evidence indicating contrary. 4. emsp In view of the above, the impugned order is liable to be set aside. I set aside the impugned Order-in-Appeal to the extent, it uphold the confiscation of the Jeep and allow the appeal of the appellant herein. (Operative part of the order already pronounced in the open Court)
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2006 (1) TMI 493 - COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE (APPEAL
Demand, penalty and interest - Cenvat/Modvat on inputs - Precedent ... ... ... ... ..... dered to be recovered from M/s. Intas Pharmaceuticals Ltd. under the provisions of Rule 57AH of the Central Excise Rules, 1944, Rule 12 of Cenvat Credit Rules, 2001 and Rule 12 of Cenvat Credit Rules, 2002 read with the provisions of Rule 14 of Cenvat Credit Rules, 2004 and further read with provisions of Section 11A(1) of Central Excise Act, 1944. 13. emsp The interest on the aforesaid amount should be worked out and be paid from the date as contemplated under the provisions of Section 11AB of the CEA, 1944 and under corresponding provisions of Cenvat Rules from the date when such credits were utilised by M/s. Intas Pharmaceuticals Ltd. towards payment of duty on other products. 14. emsp I hereby impose a penalty of Rs. 5,00,000/- (Rupees Five lakhs only) on M/s. Intas Pharmaceuticals Ltd. under the provisions of Rule 13 of Cenvat Credit Rules, 2001 and Rule 15 of Cenvat Credit Rules, 2002 and/or Cenvat Credit Rule 2004 read with Section 11AC of the Central Excise Act, 1944.
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