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Case Laws
Showing 101 to 120 of 568 Records
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2003 (10) TMI 598 - CESTAT, CHENNAI
Software - Springware software ... ... ... ... ..... ee with the ld. Counsel that in the present case the extended period of limitation is not invocable when the split up value of the item had been furnished and there was no challenge to the valuation taken up by the department. The valuation has been accepted. Therefore, it cannot be held that there was any suppression in the matter. In this regard, the citation referred to by the Counsel is applicable i.e. Tata Infotech Ltd. v. CC, Mumbai/New Delhi (supra). 20. emsp The order of confiscation is also not sustainable in the light of the judgment rendered by this Bench in the case of CCE, Madras v. Aradhi Associates (supra). 21. emsp In that view of the matter, the contention of the appellant is accepted and the impugned order is set aside by allowing the appeal with consequential relief, if any. Ordered accordingly. 6. emsp Respectfully following the ratio of our earlier order, the impugned orders are set aside and both the appeals are allowed with consequential relief, if any.
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2003 (10) TMI 597 - CESTAT, MUMBAI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... After hearing both sides and perusal of the case records, I find that this is not a case of loss of duplicate copy of invoice. Both the Public Sector Units do not seem to be following the laid down procedure regarding issue of duplicate copy for transport to cover movement of the goods. There is no indication that the department has taken any action for violation of the laid down procedure. As far as denial of credit is concerned, in view of the fact that the impugned goods have actually been received under transit challan and the same have been utilized in the prescribed manner, and that the department has been informed almost immediately after receipt of the goods, there is no case for denying the credit on the impugned goods. As such, the impugned orders passed by the lower authorities are set aside and the appeal is allowed. However, the department is free to take any action for violation of the rules against the concerned units. The appeal is allowed in the above terms.
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2003 (10) TMI 596 - CESTAT, MUMBAI
Cenvat/Modvat - Capital goods ... ... ... ... ..... ved is Rs. 5,414/-. 3. emsp From the above it is clear that all the items are either electrical equipments or used for producing, or processing goods and therefore covered under the definition of capital goods even prior to 16-3-1995, in the light of the Apex Court judgment in the case of CCE v. Jawahar Mills Ltd. - 2001 (132) E.L.T. 3 (S.C.). 4. emsp The other objection of the Revenue is that certain amount of credit had been availed on capital goods prior to the actual commencement of production in the factory. We note that prohibition on availment of credit prior to commencement of actual production was introduced on 26-12-1994 and circulated in the form of a Trade Notice dated 9th February, 1995 and since production commenced on 23-1-1995, credit cannot be denied on this ground. We therefore hold that the respondents are entitled to extension of credit availed on prior to commencement of production. 5. emsp In the result we uphold the impugned order and reject the appeal.
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2003 (10) TMI 595 - CESTAT, NEW DELHI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... k of Baroda, Godaulia Branch, Varanasi is a typographical mistake. The denial of credit is solely on the ground that concerned duty paying documents namely triplicate copy of the bill of entry is not available, having been lost. The bill of entry is however, in the name of the appellants M/s. Tirupati Tubes (P) Ltd. which was the former name of M/s. Unique Butyl Tube Industries (P) Ltd. There is no dispute that the goods have been received in the factory and no dispute as to the description of goods as mentioned in the bill of entry vis-a-vis, the goods against which the credit has been taken. The Central Excise Rules provide contingency in respect of the loss of eligible duty paying documents. Therefore, in the instant case, duty payment has to be accepted based on the customs attested copy of the original bill of entry. 5. emsp Accordingly, I hold that the appeal deserves to be allowed. The appeal is, accordingly, allowed with consequential relief, if any to the appellants.
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2003 (10) TMI 594 - CESTAT, MUMBAI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... annot be denied. 4. emsp It is not denied in the appeal that the requirements of name and address of the manufacturer of the goods to be incorporated in the invoice. Sub-rule (11) of Rule 57G, which came on the statute in February 1999, provided that credit could be taken on the basis of documents such as invoices which were not described the particulars, so long as they contain details of payment of duty, description of the goods, assessable value and name and address of the factory or warehouse. Therefore requirement and denial of credit for want of these particulars was in order. 5. emsp Appeals dismissed.
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2003 (10) TMI 593 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit of penalty ... ... ... ... ..... nt only for considering the waiver of pre-deposit of penalty by the company and not by the individual Shri Sameer Shah General Manager. 4. emsp As far as the General Manager is concerned we find that the explanations given by him to use diamonds from the local market is that the export order was required to be urgently executed and since the quantity of imported diamonds was not readily available, he used the diamonds received for the local market for the purpose of export. We find that the diamonds imported for the purpose of use in the export items was in stock at the time of visit of customs officers. Therefore prima facie it is not a case of the imported goods being spirited away by the applicants. Keeping in view all these facts and circumstances, we waive the requirement of pre-deposit of penalty both by Shri Trojan Jewellery and Sameer Shah. We are direct them to keep the Bank Guarantee alive till the disposal of the appeal. 5. emsp The applications are hereby allowed.
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2003 (10) TMI 592 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... 6. But the authorities below have applied the provisions of Notification No. 14/96-C.E. (N.T.), dated 23-7-96 for denying the credit. Prima facie, this is wrong. 2. emsp Waiver of pre-deposit and stay of recovery are, therefore, granted in this case. The appeal is posted to 6th Jan., 2004 for hearing.
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2003 (10) TMI 591 - CESTAT, MUMBAI
Cenvat/Modvat - Input ... ... ... ... ..... e ground that syringes and needles are not packing materials and hence can not be considered as inputs. In the instant case, the appellants are not claiming syringes and needles to be packing material. It is their case that the injection as well as syringes and needles are sold in a set and that value of the set includes the value of the syringes and needles on which duty is being paid. It is not the case of the Department that syringes and needles are being classified separately or duty is being charged on these items on their separate value. Since the entire set is classified as one item and the value of the syringes and needles is included in the value of the set, I feel it appropriate to apply the ratio of the decision of the Tribunal in the case of Heal Well Pharmaceuticals cited supra and order that input duty credit in respect of such syringes and needles forming a part of the set is admissible. 3. emsp Accordingly, I set aside the impugned orders and allow the appeal.
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2003 (10) TMI 590 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit penalty ... ... ... ... ..... tamp of the CHA. 2. emsp We have heard both sides. We find that other than the statement of Girish Gopal Parab, there is prima facie no evidence to connect the applicant before us with the offence of abetment in transportation of the consignment of concealed foreign currency by misuse of the CHA licence under oral instructions from the applicant. The applicant rsquo s statement is exculpatory and no other statement has been recorded from any of the noticees about the involvement of the present applicant. Therefore, a prima facie case for waiver of pre-deposit has been made out by the applicant. Pre-deposit of penalty is waived and recovery thereof stayed pending the appeal.
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2003 (10) TMI 589 - CESTAT, NEW DELHI
Cenvat/Modvat on capital goods ... ... ... ... ..... ry to the main or primary importance rdquo . The learned Advocate submitted that as conveyor moves on the MS Rails, these are accessories and as per the definition of capital goods under Rule 57AA of the Central Excise Rules, 1944 components, spares and accessories of the goods specified under Chapter 84 are also capital goods that it rsquo s not necessary that the accessories should only fall under the specified Chapters that this has been clarified by the Board in Letter No. F.B/4/7/2000-TRU, dated 3-4-2000, that the components, spares and accessories may fall under any Chapter of the Central Excise Tariff. 5. emsp I fully agree with the submissions made by the learned Advocate that MS Rails are accessories to the conveyor which is classified under Chapter 84, which is specifically mentioned in Rule 57AA(a)(i). In view of this, the respondents are eligible to avail of the Modvat credit of the duty paid on MS Rails. To this extent the Appeal filed by the Revenue is rejected.
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2003 (10) TMI 588 - CESTAT, MUMBAI
Cenvat/Modvat - Declaration - Delay in filing declaration ... ... ... ... ..... g authority and the appellants are required to substantiate their case to claim credit against original invoices. 6. emsp Accordingly, the appeal is partly allowed as under - (a) The Modvat claim to the extent of Rs. 7,37,576/-, disallowed by the lower authorities on the ground of late declaration or non-declaration, is permitted, (b) Claims in respect of Modvat credit taken on commercial invoice (Rs. 1,736/-) and on the basis of invoices not being in their name (Rs. 2,843/-) are rejected. (c) The claims for credit taken on original invoices Sr. Nos. 34 and 39 of the show cause Notice dated 22 September 1995 (Rs. 3,067/- and Rs. 1,366/-, respectively) are remanded back to the original adjudicating authority for de novo consideration for passing fresh order after following the principles of natural justice, conforming only to the said two invoices. 7. emsp Appeal is allowed partly in the above terms, and consequentially orders of the lower authorities stand modified, as above.
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2003 (10) TMI 587 - CESTAT, MUMBAI
Redemption fine and penalty - Quantum of - Margin or profit ... ... ... ... ..... his order the Board found that the margin of profit was 348.70 and further that the fine and penalty imposed were meagre. The Board has also observed that ldquo such leniency in the imposition of redemption fine and penalties in the cases of Import Trade Control violations and under valuation is likely to embolden other importers to repeat such violations for similar substantial profit without any compunction. rdquo 3. emsp We find substance in the Board rsquo s observation. In view of the fact that very low fine and penalty have been imposed, while upholding the order of confiscation we set aside the fine and penalty imposed and remand the case for fresh determination of fine and penalty by the successor Commissioner in accordance with law and taking into account the gravity of offence and the margin of profit. A reasonable opportunity of hearing should be afforded to the respondents before passing a fresh order. 4. emsp Appeal is allowed by way of remand in the above terms.
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2003 (10) TMI 586 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... subsequently re-exported. The Commissioner has held that credit is not admissible. 2. emsp On hearing both sides, we find that Rule 173MM and Rule 97B covering the situation of rejected exports are applicable to the applicants herein. However, in spite of holding that the relevant rules covered the applicants rsquo case, the Commissioner has disallowed the credit. We find that there is no clear reason by the Commissioner for disallowing the credit particularly on the plea that they are covered by the rules. There is no finding that the goods in question are not covered by the provisions of Rule 97B which permits re-import of exported excisable goods for carrying out repairs, reconditioning, refining, re-making or subject them to any process similar to other process. In this view of the matter we hold that a prima facie case for waiver has been made out and hence dispense with the requirement of pre-deposit of the duty and penalty and stay recovery thereof, pending the appeal.
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2003 (10) TMI 585 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - EXIM ... ... ... ... ..... in the context of Notification 2/95. The Tribunal has held that sales to DTA against foreign exchange would be treated on the same footing as physical export. In other words the Tribunal has held that the benefit of the notification is available even in the case of clearances to DTA on payment of foreign exchange in terms of Para 9.9 of the Exim Policy. The applicants have therefore made out a strong prima facie case for total waiver on the basis of the above case law. We accordingly dispense with the requirement of pre-deposit of the duties and penalties (details of which are given in the annexure to this order) and stay recovery thereof pending these appeals. ANNEXURE Details of Duties and Penalties Stay Application No. Appeal No. Order-In-Original No. Amount of duty Amount of penalty E/S/1010/03-Mum E/1573/03-Mum SRT-V/ADJ-142/2000, dated 30-11-2000 Rs. 6,46,289/- Rs. 1,25,000/- E/S/1011/03-Mum E/1574/03-Mum SRT-V/ADJ- 143/2000, dated 30-11-2000 Rs. 3,16,250/- Rs. 75,000/
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2003 (10) TMI 584 - CESTAT, MUMBAI
Demand and penalty ... ... ... ... ..... vity and the goods are required for such purposes is prima facie not satisfied. The denial of the exemption was therefore in order. 5. emsp In our opinion, the penalty imposed on the appellant also does not require any modification. The representative of the appellant is not able to explain why the appellant did not take elementary steps to ensure, before clearing the goods without payment of duty, that the condition of the notification was not complied with. He accepts that no certificate was furnished by the required authority to the Government of India. The certificate of the Director of Medical Education, Madhya Pradesh, is clearly entirely unacceptable for the purposes of that notification and the appellant is not able to explain that it chose not to furnish a certificate issued by the authority specified in the notification. Quantum of penalty of Rs. 1.87 lakh against the duty of Rs. 7.40 lakhs is not incommensurate with the gravity of offence. 6. emsp Appeal dismissed.
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2003 (10) TMI 583 - CESTAT, MUMBAI
Dutiability - Marketability ... ... ... ... ..... oods. The appellants claim that the impugned goods being a transient product, the Department is required to prove the marketability of the same as per the Apex Court decision in the case of C.C.E. v. Ambalal Sarabhai Enterprises - 1989 (43) E.L.T. 214 (S.C.), which the Department has failed to do. Moreover, the Commissioner (Appeals) has used a chemical examination report which is not disclosed to the appellants. The learned S.D.R. fairly admits that the chemical examination report was not given to the appellants. 2. emsp After hearing both sides and perusal of case records, we are of the opinion that the impugned goods are not excisable. In any case, these intermediate products, as claimed by the appellants, are also entitled to benefit under Notification No. 217/86. As such, we set aside the impugned order-in-appeal and restore the order-in-original. 3. emsp The appeal is allowed in the above terms. Our order was pronounced in the court on the date of hearing on 14-11-2002.
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2003 (10) TMI 582 - CESTAT, NEW DELHI
Cenvat/Modvat ... ... ... ... ..... mbay-I, reported in 1996 (83) E.L.T. 620 (Tribunal) and on reference the Hon rsquo ble Gujarat High Court in the case of M/s. Krishna Chemicals, Ahmedabad passed on 22-11-2000 decided the case against the Revenue. Now, the Central Board of Excise and Customs, New Delhi had issued Circular dated 19-11-2001. For ready reference the Circular is reproduced below ldquo I am directed to invite reference to the judgment of Hon rsquo ble High Court of Gujarat in the case of M/s. Krishna Chemicals, Ahmedabad, passed on 22-11-2000, the Hon rsquo ble High Court has interpreted Notification No. 16/94-C.E. (N.T.), dated 30-3-94 and held that the gate passes issued prior to 1-4-94 but endorsed thereafter would be valid documents for availment of credit, subject to credit being taken on or before 30th June, 1994. The subject judgment of the Hon rsquo ble High Court of Gujarat has been accepted by the Board. All pending cases may be decided by following the ratio of the said judgment. rdquo
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2003 (10) TMI 581 - CESTAT, MUMBAI
Cenvat/Modvat - Capital goods ... ... ... ... ..... vii) Heating Element. To this appellant, a manufacturer of Dyes, on the grounds that the use of these entities was not for producing or in any manufactur shy ing process of any product, they were not used for bringing out any charge. 3. emsp The issue of eligibility has been settled by the Apex Court by decision in the case of Jawahar Mills Ltd., 2001 (132) E.L.T. 3 (S.C.). Therefore, when goods are received and are duly paid, it is not for the department to deny the eligibility and determine the eligibility qualifications on use. The findings of the lower authority based on use qualifications cannot be upheld. The appeals therefore are allowed.
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2003 (10) TMI 580 - CESTAT, MUMBAI
EXIM - Forklift truck tyres ... ... ... ... ..... y objection the import policy allowed import for tyres inter alia for busses and lorries and, by liberal interpretation this would cover the imported tyres. 4. emsp I am not able to accept any of these grounds. The availability in India of the tyres or otherwise is not the criterion to determine whether they are freely importable without a licence. No evidence of clearance of such goods elsewhere by the Customs is placed before me. I do not find it possible to say that forklift trucks fall in the same category of busses and lorries. To cite at least one significant difference, the latter are utilised for transport of goods over roads forklift trucks are utilised in factories for movement of goods. 5. emsp Appeal dismissed.
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2003 (10) TMI 579 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Cenvat/Duty paying documents ... ... ... ... ..... ot accept a document that has no authentication of any manner. In a situation of this kind, where the bill of entry are electronically generated and only signature appearing is the signature of the officer passing the goods out of the customs charge, it appears to be prima facie that the circular of the board requiring certification by the customs officer of the duty actually paid on a declaration filed by the importer showing his intention to transfer the goods is a measure of prudence in accordance with the rules. The representative of the applicant is not able to show any evidence of transfer of the goods to Caltex India Ltd. 4. emsp In this situation, I think it appropriate to ask the applicant to deposit Rs. 1.90 lakhs either by debit to the personal ledger account or modvat account and produce evidence within two months from today. On production of such evidence, I waive deposit of the remaining credit and penalty and stay its recovery. 5. emsp Compliance on 13-11-2003.
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