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Showing 161 to 180 of 489 Records

• 2006 (10) TMI 359 - CESTAT, BANGALORE
  

  Confiscation - Import of hazardous chemicals

  
  
  ... ...
  ... ... ..... e Customs Act would be applicable to the impugned goods. The learned advocate has clearly brought out the points that Notification dated 16-2-2004 has been issued only under Section 5 of FTDR and it cannot be equated to an order issued under 3(2) of FTDR. In such circumstances, Section 11 would not be applicable to the impugned goods. For clarity we reproduce Section 3(3) of the FTDR. Section 3(3) All goods to which any Order under sub-section (2) applies shall be deemed to be goods the import or export of which has been prohibited under Section 11 of the Customs Act, 1962 (52 of 1962) and all the provisions of that Act shall have effect accordingly. 7.1 emsp In view of the above, legally the Commissioner rsquo s order confiscating the impugned goods under Section 111(d) read with 3(2) and 3(3) of FTDR is not correct. Hence, the impugned order has no merits and the same is set aside. Thus, we allow the appeal with consequential relief. (Pronounced in open Court on 10-10-2006)

  ---

• 2006 (10) TMI 358 - CESTAT, MUMBAI
  

  Exemption - Option

  
  
  ... ...
  ... ... ..... E, Ahmedabad - 2003 (152) E.L.T. 423 (Tri.-Mumbai) (ii) Mafatlal Industries Ltd. v. CCE, Vadodara - 2003 (162) E.L.T. 1143 (Tri- Mumbai) (iii) Pankaj Petropack Pvt. Ltd. v. CCE, Vadodara - 2002 (143) E.L.T. 600 (Tri.- Mumbai) (iv) CCE, Jaipur v. Global Overseas - 2005 (192) E.L.T. 334 (Tri. - Del.) All these decisions speak about that the assessee has an option to avail exemption or he can choose to pay the duty and that the exemption notification can not be forced upon an assessee. 6. emsp The impugned order is also silent about the second issue involved and there is no discussion at all. In this context, it is quite felt expedient to remand the matter back to the Commissioner (Appeals) for re-examining the issue involved in the light of aforesaid decision and come to conclusion afresh after providing an opportunity on both sides to make there on submissions including further case laws if any. Accordingly, the appeal is allowed in remand in above terms. (Pronounced in Court)

  ---

• 2006 (10) TMI 357 - ITAT AHMEDABAD
  

  Interest, chargeable as

  
  
  ... ...
  ... ... ..... e advance tax and TDS paid by the assessee worked out at Rs. 2,01,22,225. Thus, in any case it was in excess of first two refunds aggregating to sum of Rs. 35,55,411. In this view of the situation it cannot be held that learned CIT(A) is wrong in concluding that no interest could be charged in respect of first two refunds aggregating to Rs. 35,55,411 and interest could be charged only in respect of third refund given to the assessee amounting to Rs. 3,26,37,466. Learned CIT(A) has directed the Assessing Officer to compute interest under section 234D in respect of third refund for the period for which the excess refund has been granted to assessee i.e., 19-3-2004 till the date of regular assessment. His, this direction is in accordance with law and has to be upheld. Thus we find no reason to interfere in the order of CIT(A) and accordingly the Departmental appeal is dismissed. In the result, Departmental appeal is dismissed. 10. In the result, Departmental appeal is dismissed.

  ---

• 2006 (10) TMI 356 - ITAT AHMEDABAD
  

  Rectification of mistakes

  
  
  ... ...
  ... ... ..... lication of the assessee under, section 35 of the Act even according to the abovementioned decisions in the cases of Chokshi Metal Refinery (supra) and KM Oil Industries (supra). The Department cannot shut the door of the assessee to prove that the claim of assessee is in accordance with law by merely rejecting the claim of assessee on the ground that there is no mistake apparent from record, therefore, the claim of assessee cannot be accepted. In our considered opinion, in the interest of justice the assessee should be given an opportunity to prove its claim on merits instead of rejecting the claim of assessee on the face of it. Therefore, we restore the issue to the file of Assessing Officer with direction to examine the claim of assessee on merits as per provisions of law and then pass a speaking order regarding exclusion or otherwise of the said property from assessable wealth. We direct accordingly. 10. In the result, for statistical purposes all the appeals are allowed.

  ---

• 2006 (10) TMI 355 - ITAT BANGALORE
  

  Income - Deemed to accrue or arise in India

  
  
  ... ...
  ... ... ..... done in India, no portion of work is taxable in India and thus section 201 read with section 195 is not attracted in this case. 6.6 Thus, for these reasons, we follow the decision of Mumbai Bench of the Tribunal in the case of India Hotels Co. Ltd. (supra) and the judgment of the Hon rsquo ble Supreme Court in the case of Transmission Corpn. of AP ( supra) and uphold the contention of the assessee that the transaction in question is a transaction of sale and not a case of rendering technical services as contemplated under section 9(1)(vii) of the Act and even otherwise no part of the service is rendered in India and thus, the assessee cannot be held to be an assessee in default for non-deduction of tax at source. Thus, this ground the appeal of the assessee is allowed. 6.7 As we have allowed the appeal of the assessee on this ground, we do not propose to go into the other contentions as it would be an academic exercise. In the result, the appeals of the assessee are allowed.

  ---

• 2006 (10) TMI 354 - CESTAT, NEW DELHI
  

  Confiscation and penalty

  
  
  ... ...
  ... ... ..... ssue notice to the owner of the goods shall also obtain in case of goods that have been confiscated but in respect of which all appeal/legal remedies have not been exhausted by the owner of the goods. rdquo 7. emsp It can be noticed from decision of the Hon rsquo ble Supreme Court rsquo s in the case of Northern Plastics and Hon rsquo ble High Court of Delhi and the circular of the CBEC, that before disposing the seized/confiscated goods, a notice has to be issued to the owner before the disposal. In the present case before me, the lower authorities have not issued any notice to the respondent before disposing the seized/confiscated goods. 8. emsp In view of the fact and circumstances of the case, the impugned order is correct in law and does not require any interference. The appeal filed by the revenue is dismissed. Since the cross-objection filed by the respondent is in support of the order-in-appeal, the same is also disposed of. (Dictated and pronounced in the open court)

  ---

• 2006 (10) TMI 353 - CESTAT, MUMBAI
  

  Adjudication - Demand

  
  
  ... ...
  ... ... ..... ion in the Delivery Schedule in the event of payment or brokerage is well known fact and nothing is suppressed. 7. emsp The other contention is that in respect of second Show-Cause-Notice, consignment is made, assessee has availed the Cenvat credit and paid the duty and the formal declaration have been given. The officers said to have verified the same. 8. emsp In the aforesaid circumstances, it is quite felt expedient to remand the matter back to the Original Adjudicating Authority for certifying the duty element claimed by the assessee on furnishing the information required and also looked into other aspects of the case including the limitation in respect of Show-Cause-Notice dated 3-7-2002 and as well as imposition of penalty when no material suppression of fact is claimed. After due consideration of the enquiry, the matter shall be disposed of in accordance with law. All issues are kept open. In the result, appeal is allowed in remand in above terms. (Pronounced in Court)

  ---

• 2006 (10) TMI 352 - CESTAT, BANGALORE
  

  Interest on delayed refund

  
  
  ... ...
  ... ... ..... ection 129E of the Customs Act and the benefit of Board rsquo s-Circular 8-12-2004 should be given. As per para 4 of the said Board rsquo s Circular, in terms of the Apex Court rsquo s order, the pre-deposit should have been returned within three months from the date of the order passed by the Appellate Tribunal/Court or other Final authority unless there is a stay. In the present case, the Supreme Court passed the order on November 11, 2003. If we apply the Board rsquo s Circular, after a lapse of three months from the date of the Supreme Court rsquo s order, the appellant is entitled for interest till the date of payment of the refund amount. Therefore, in this case, the appellant is entitled for interest. We direct that the lower authority shall grant interest in terms of para 4 of Board rsquo s Circular considering the encashment of Bank Guarantee as payment of pre-deposit. The appeal is allowed by way of remand in the above terms. (Pronounced in open Court on 31-10-2006)

  ---

• 2006 (10) TMI 351 - CESTAT, MUMBAI
  

  Refund - Unjust enrichment - Effect of quantum of refund amount

  
  
  ... ...
  ... ... ..... bserved that during the material period the price of final product i.e. Irrigation component has considerably gone down. The respondent herein has paid Rs. 3.05 crores per annum on the imported inputs. The amount of Rs. 22,844/- is too small to have any impact on the price of the exempted final product. In spite of the same the value of the final product has gone down (may be, because of other market forces). The respondent has not passed on burden to its customers to purchase the final product. 3. emsp In view of the aforesaid observation, I find no merits in the present appeal on both the grounds. Hence rejected. (Pronounced in Court)

  ---

• 2006 (10) TMI 350 - CESTAT, MUMBAI
  

  Stay of order - Refund - Unjust enrichment

  
  
  ... ...
  ... ... ..... xcise Duty. Therefore, the assessee claimed refund of duty paid, on the ground that, there was no collection of the duty from their customers and as a matter of fact, they have received low price than the value fixed and also suffered loss in Sale Exhibition. The appellants have relied upon 13 documents as set out in the Order-in-Original and on perusal of the same the Assistant Commissioner, Central Excise, had satisfied that but there is no question of unjust enrichment since the assessee had suffered huge loss. Furthermore, the Range Superintendent had recommenced the refund after verifying the Bills and the Sales Registers maintained by the assessee. At this prima facie stage of this, I am satisfied that the amount already paid to the assessee can not be recovered pending disposal of this appeal. Accordingly, operation of the impugned order passed by the Commissioner (Appeals), Central Excise, Mumbai-I is hereby stayed pending disposal of the appeal. (Pronounced in court)

  ---

• 2006 (10) TMI 349 - CESTAT, CHENNAI
  

  Adjudication - Remand - Valuation - Penalty

  
  
  ... ...
  ... ... ..... Q without finalizing the demand of duty inasmuch as the extent of duty evasion by the assessee had a bearing on their penal liability. This finding is more or less applicable to the penalty imposed on M/s. CVPL also. 7. emsp In the result, bearing in mind the letter and spirit of the final order dated 29-6-2001 passed by this Bench, and, with the consent of both sides, we set aside the Commissioner rsquo s order and direct him to pass a fresh speaking order in adjudication of the SCN after taking into account any order passed by the Asst. Commissioner pursuant to the Tribunal rsquo s Final Order No. 1014 and 1015/2001 dt. 29-6-2001 and after giving the appellants a reasonable opportunity of being heard on all issues. It is clarified that any such ldquo order of the AC rdquo shall be treated only as a report for quantification of Modvat credit. 8. emsp All the three appeals stand allowed by way of remand. (Operative part of the order was pronounced in open Court on 25-10-2006)

  ---

• 2006 (10) TMI 348 - CESTAT, BANGALORE
  

  Manufacture - Sulphur bentonite

  
  
  ... ...
  ... ... ..... ld that no new product has arisen on such mixing. The same Bentonite and Magnesium Oxide are fillers and their mixing is necessary for the purpose to avoid handling problems as noted in Para 8 of the Deepak Fertilisers (supra) case. We have also noticed that Revenue has not produced any evidence to prove that on mixing of these two products, the unrefined crude sulphur has changed its properties and new product has come to be known in the market. The Revenue has not established through evidence and discharged their burden that mixing of Bentonite clay and Magnesium Oxide with imported unrefined/crude sulphur has brought into existence new product. Therefore, the ratio of the judgment rendered in the case of Deepak Fertilisers (supra) is not distinguishable. Respectfully following the ratio therein, the impugned order is set aside and the appeal is allowed with consequential relief, if any. (Operative portion of this Order was pronounced in open court on conclusion of hearing)

  ---

• 2006 (10) TMI 347 - CESTAT, MUMBAI
  

  Demand, interest and penalty - Valuation - Cum-duty price

  
  
  ... ...
  ... ... ..... could have cited them as their own witnesses, which admittedly was not done. 9. emsp For the foregoing reasons, we find ourselves in complete agreement with the reasoning adopted by the adjudicating Commissioner in the impugned order, and his findings. The penalties imposed are just and adequate and warrant no interference. At this stage, the learned counsel for the appellants submits that the value determined may be treated as the price-cum-duty. This submission has not been made at any stage. However, the valuation which is worked out despite the admitted market value of Rs. 25,000/- obviously did not include any duty component because the goods were manufactured without any excise registration and were cleared clandestinely and even the customers also stated that they did not pay any duty in respect of these goods which were manufactured by the appellant without any excise registration. All the appeals are, therefore, dismissed. (Dictated and pronounced in the open Court)

  ---

• 2006 (10) TMI 346 - CESTAT, MUMBAI
  

  Penalty - Delay in payment of duty

  
  
  ... ...
  ... ... ..... r suppression of facts or contravention of any of the provisions of this Act or the rules made thereunder with intent to evade payment of duty as laid down under Section 11AC of Central Excise Act. According to the ld. DR in Sony India Ltd. the Supreme Court had set out the similar guidelines as seen from para 7 of the judgment 2004 (167) E.L. T. 385 (S.C.) 6. emsp In the instant case, it is seen the contravention of the provisions of Rule 96ZQ of Centra1 Excise Rules, 1944. There is repetition of delay in payment of duty. Therefore, in such circumstances, I am not inclined to apply the principles laid down in the case of Machino Montell (I) Ltd. and other connected decisions. But, however, having regard to the quantum of the duty payment, penalty is imposed on higher side. Therefore, it is felt appropriate to reduce the penalty. Accordingly, further penalty is reduced to Rs. 30,000/- from Rs. 3.00 Lakhs. In the result, appeal is disposed of accordingly. (Pronounced in court)

  ---

• 2006 (10) TMI 345 - CESTAT, NEW DELHI
  

  Stay/Dispensation of pre-deposit - Demand and penalty

  
  
  ... ...
  ... ... ..... submitted that the Tribunal on 20-10-2006 allowed waiver of pre-deposit of differential duty and penalty in similar situation in the case of M/s. Krishna Business Home v. CCE, Delhi-IV, Appeal No. C/534/06. 3. emsp We find that no doubt the test report of CRCL in respect of sample is that fabric is composed of textured multifilament yarn. However, in the cross-examination, Chemical Examiner of CRCL admitted that the sample was tested in the general lab condition and not in conditioned temperature, humidity or pressure. The HSN Explanatory notes provide procedure for determining the physical and mechanical property of textile. This procedure was not followed while testing the samples. In these circumstances, prima facie, appellants had a strong case in their favour. Therefore, the pre-deposit of duty and penalty is waived for hearing the appeal. 4. emsp The Registry is directed to list the appeal along with the appeal No. C/534/2006. (Dictated and Pronounced in the open Court)

  ---

• 2006 (10) TMI 344 - CESTAT, AHMEDABAD
  

  Silicon compound - Penalty - Imposition of

  
  
  ... ...
  ... ... ..... rdquo are under Chapter 2804.40 whereas its compounds are listed separately under Chapter 2811. Under these circumstances, the exemption available to Silicon cannot be extended to Silicon compound. 4. emsp The decision of the Tribunal relating to Collector of Central Excise, Rajkot v. Madhu Chemicals, Bhavnagar reported in 1986 (23) E.L.T. 166 (Tribunal), relates to extending the concession of silicon under the residuary tariff item 68 under the erstwhile tariff. The same cannot be applied in this case, where silicon in all forms and compounds has separately been listed under Chapter 28. 5. emsp Appeal of the party is dismissed in so far as it relates to exemption claimed for the silicon compounds under Notification 5/98. As the matter relates to interpretation, we accept the plea that there is no warrant for imposition of penalty. Accordingly, penalty imposed is set aside. 6. emsp Appeal is disposed of in the above terms. (Dictated and Pronounced in the Court on 27-10-2006)

  ---

• 2006 (10) TMI 343 - CESTAT, BANGALORE
  

  Cenvat/Modvat - Capital goods - Late filing of declaration

  
  
  ... ...
  ... ... ..... pect of the recipient factory. This is only a decision based on correction of a clerical error. Therefore, the case-laws cited by the learned JDR cannot be made applicable. In these circumstances, we find that the decision of the original authority in allowing the credit is proper. The Commissioner (Appeals) was not correct in setting aside the decision of the original authority. Hence, we allow the Modvat credit on the above machine. 5.2 emsp As regards the Ingersoll-Rand Air compressor, the original authority, after satisfying that the compressor is being used in fluid driers for drying drug intermediates and not for refrigeration and air-conditioning machine (excluded category), has allowed the modvat. We do not find anything wrong in this decision. 6. emsp In fine, the appellant is entitled for Modvat credit to the tune of Rs. 3,01,393/-. Hence, we set aside the impugned order and allow the appeal with consequential relief, if any. (Pronounced in open Court on 18-10-2006)

  ---

• 2006 (10) TMI 342 - CESTAT, BANGALORE
  

  Demand - Waste and scrap generated during plant expansion - Dutiability of

  
  
  ... ...
  ... ... ..... .). He also placed before us the ruling of Delhi Bench on an identical issue wherein scrap has been held to be not dutiable in the case of Gujarat Ambuja Cements Ltd. v. CCE, Rajkot - 2004 (163) E.L.T. 399 (Tri.-Del.) Hindustan Petroleum Corporation Ltd. v. CCE, Vishakapatnam - 2002 (144) E.L.T. 555 (Tri.-Bang.) and Larsen and Toubro Ltd. v. CCE, Rajkot - 2004 (173) E.L.T. 515 (Tri.-Mumbai). 3. emsp The learned JDR reiterated the departmental views. 4. emsp On a careful consideration, we notice that the scrap has not generated from the mechanical working of metals, as we find in Section XV of the Central Excise Tariff Act. The similar scraps which have generated during the construction of various civil structures has to be held not dutiable. Respectfully, following the ratio of the above noted judgments, the impugned order is set aside and the appeals are allowed with consequential relief. (Operative portion of this order was pronounced in open Court on conclusion of hearing)

  ---

• 2006 (10) TMI 341 - CESTAT, AHMEDABAD
  

  Demand and confiscation of goods - Penalty

  
  
  ... ...
  ... ... ..... sed only against M/s. Jay Krishna Sizers and M/s. Carewell Rayons Pvt. Ltd. who purchased imported raw materials and to whom provisional release of the goods was allowed, cannot be accepted for the reason that the Director of the 100 EOU had admitted that the EOU had imported PFY duty free and no document has been produced to show that the goods were imported by someone else, and the option to redeem the goods seized from the premises of M/s. Jay Krishna Sizers and M/s. Carewell Rayons Pvt. Ltd. has been given to 100 EOU. 4. emsp In the light of the above, we uphold the confiscation and duty demands. Penalty on the 100 EOU is also upheld. Penalty on the Director of the 100 EOU is set aside as unsustainable for the reason that it is a consolidated/composite penalty imposed under Sec. 112(b) of the Customs Act and Rule 209A of the Central Excise Rules which is not legally permissible. 5. emsp In the result the appeal No. E/373/02 is allowed and appeal No. E/377/02 is dismissed.

  ---

• 2006 (10) TMI 340 - CESTAT, AHMEDABAD
  

  Appeal to Appellate Tribunal - Admission of

  
  
  ... ...
  ... ... ..... sp The ld. DR on behalf of the revenue submits that the provisions contained in second proviso to Section 35B , give unfettered discretion to the Tribunal not to admit the appeal where the amount of duty or penalty does not exceed Rs. 50,000/-. These provisions do not talk of any point of law or fact. Therefore, his submission is that the Tribunal has rightly rejected the appeal at the admission stage itself and there is no need to restore the same. 5. emsp After hearing and perusal of the records and the provisions as contained in second proviso to Section 35B , I find that the discretion of the Tribunal is unfettered and the Tribunal need not consider the points of law or facts or any other point involved in the case while refusing to admit the appeal. Once the Tribunal has exercised its discretion to refuse to admit the appeal, I do not find any reason to interfere with the order passed by it. I, therefore, dismiss the restoration of appeal application. (Dictated in Court)

  ---

1 ....5678910111213........ 25