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Case Laws
Showing 181 to 200 of 489 Records
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2006 (10) TMI 339 - CESTAT, BANGALORE
Export Oriented Units - 100% EOU - Misutilisation of imported material ... ... ... ... ..... orts amounting to Rs. 6,30,63,280.65. It is the contention of the appellants that taking the ratio of 1 1.71 the consumables utilized in the exports is much more than the quantity of consumables imported. Taking overall facts and circumstances of the case, we find that in the absence of strong evidence to show that the imported materials during the years 1985-86 and 1986-87 were mis-utilised, it is not correct to demand duty and to impose penalty on them especially when there is no complaint that the unit has not fulfilled the export obligation. Moreover, there is force in the appellant rsquo s contention that year-wise performance has not been prescribed under the 100 E.O.U. scheme unlike the EPCG scheme. In these circumstances, we do not find any merit in the order of the Commissioner. Consequently we set aside the Order-in-Original and allow the appeal with consequential relief. (Operative portion of the order has been pronounced in the open Court on completion of hearing)
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2006 (10) TMI 338 - CESTAT, MUMBAI
Appeal - Limitation ... ... ... ... ..... l could not have been filed within the period above-mentioned, it could have been filed beyond a further period of three months and the delay could have been condoned, if the reason for the delay was found acceptable by the Commissioner (Appeals). In other words, the appeal could have been filed at the most not before 22-12-2004. However, the appeal before the Commissioner (Appeals) was filed only on 25-1-2006, i.e. after 18 months from the date of receipt of the adjudication order. Therefore, the Commissioner (Appeals) has rightly dismissed the appeal filed before him on the ground of limitation. The Tribunal cannot condone the delay which has occurred in filing of appeal before the lower appellate authority, as held by the Larger Bench in the case of Maithan Ceramic Ltd. v. CCE, Jamshedpur, 2002 (145) E.L.T. 394. 3. emsp In these circumstances, we see no reason to interfere with the impugned order and accordingly uphold the same and dismiss the appeal. (Pronounced in Court)
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2006 (10) TMI 337 - CESTAT, CHENNAI
Customs House Agent’s licence - Forfeiture of security deposit ... ... ... ... ..... It appears from Regulation 20(1) of CHALR that an order for forfeiture of security deposit furnished by a CHA can be made by jurisdictional Commissioner of Customs only in connection with revocation of the CHA licence. We have already held that a non-existent licence (like the one involved in this case) cannot be revoked effectually. It would follow that the order for forfeiture of security is unsustainable. As it is an admitted fact that the appellants never applied for renewal of the licence, the security deposit is liable to be refunded to them. We set aside the forfeiture and allow the appeal to this extent. Though we have found against the suspension/revocation of the licence, we are not inclined to set it aside for the reason that, by doing so, the appellants are not getting any realisable relief. The Tribunal would not pass futile orders. 3. emsp In the result, the appeal stands allowed in part only. (Operative part of the order pronounced in open court on 31-10-2006)
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2006 (10) TMI 336 - CESTAT, NEW DELHI
Appeal - Limitation - Condonation of delay ... ... ... ... ..... applications to condone the delay. rdquo 7. emsp I find that the issue involved in this case before me is squarely covered by the Division Bench decision of the Tribunal in the case of Vishwanath Iron and Steel Rolling Mills (supra), as the review order does not indicate anywhere that the Committee of Commissioners have found the order illegal or improper. The review order of the Committee of Commissioners to file an appeal was taken on the specific direction of the Chief Commissioner. In the absence of any findings that the order of the Commissioner (Appeals) is improper or not legal the appeal filed by the revenue is not correct, has held by the Supreme Court in the case of Rohit Pulp Paper Mills - 1990 (47) E.L.T. 491 (S.C.). In the facts and circumstances of the case, as mentioned above, the application for condonation of delay filed by the revenue is dismissed and consequently appeal filed by the revenue also stands dismissed. (Dictated and pronounced in the open court)
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2006 (10) TMI 335 - CESTAT, AHMEDABAD
Penalty - Imposition of - Appeal to Appellate Tribunal - Ground ... ... ... ... ..... appellants, it is clear that tariff Heading 8437 is not appropriate and therefore, the decision of the original authority and the Commissioner (Appeals) in holding the classification of the impugned product under tariff Heading 8479 is in order. 4. emsp At this stage, ld. Advocate for the appellants submits that the issue is basically the question of interpretation of tariff classification and no mala fide intention involved on the part of the appellants and the penalty is not imposable. This plea is acceptable. 5. emsp Ld. Advocate for the appellants also raises an issue that the duty has been demanded treating the entire sale proceed of the machinery as prices instead of treating the same as cum-duty prices. This fact has been raised for the first time before the Tribunal, and hence we deem it proper that the matter goes back to the original authority to consider this issue alone. 6. emsp Appeal is disposed of in the above terms. (Dictated and pronounced in the open Court.)
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2006 (10) TMI 334 - CESTAT, CHENNAI
... ...
... ... ..... ther, the pre-dated invoices produced by the appellants and alleged to have been used for export of the goods can hardly be accepted as evidence of the incidence of duty on the goods having not passed on to the foreign buyer inasmuch as the goods covered by the pre-dated invoices of the exporter cannot be held to be the same as the goods covered by the manufacturers rsquo invoices shown to have been issued later. As rightly pointed out by learned SDR, there is no evidence of the goods supplied by the manufacturer having been exported by the appellants. The appellants have even failed to satisfy the substantive requirements of clause (a) of the proviso to Section 11BC of the Central Excise Act. Procedurally also, they have failed to comply with the conditions of Section 11B. Hence the order of the lower appellate authority is liable to be sustained and it is ordered accordingly. The appeal is dismissed. (Operative portion of the order was pronounced in open Court on 3-11-2006)
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2006 (10) TMI 333 - CESTAT, NEW DELHI
Refund - Unjust enrichment - Captive consumption ... ... ... ... ..... original gate pass was required before the year 1994, and that in their case, all the original gate passes issued by them have shown ldquo self/SAE (India) Ltd. rdquo as consignee for their captive use and all gate passes were submitted with their refund claim and which confirmed that incidence of duty was not passed on to any person. The impugned decisions have been given without examining the facts of the case on merits for coming to a finding on the aspect of unjust enrichment. The impugned order cannot, therefore, be sustained. The matter is required to be considered afresh by the original authority, who will take a fresh decision, in accordance with the law, after hearing both the sides. The impugned order is, therefore, set aside and the matter is remanded to the original authority for a fresh consideration and decision in accordance with the law, after hearing the parties. The appeal is accordingly, allowed by way of remand. (Pronounced and dictated in the open Court)
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2006 (10) TMI 332 - CESTAT, CHENNAI
Demand - Limitation - Extended period ... ... ... ... ..... it is seen that the irregularity of non-payment had occurred in thirty-seven instances of clearances mdash ten cases on 24-1-03, five cases on 11-10-2001 and four cases on 24-12-2001. To me it appears to be an error on the part of the concerned staff. I do not find any reason or motive for one of the largest duty paying units in the Commissionerate to evade payment of a relatively small amount of duty in a small number of cases spanning six years from 1997 to 2003 in view of the fact that whatever amount of duty paid would have been available as Modvat credit to its sister unit. In the circumstances, I hold that the ratio of Jay Yuhshin (supra) applies to the subject case and therefore, duty demanded invoking larger period is liable to be set aside. It also follows that the assessee was not liable to pay any penalty under Section 11AC of the Central Excise Act. Accordingly the impugned order is set aside and the appeal is allowed. (Order dictated and pronounced in open Court)
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2006 (10) TMI 331 - CESTAT, BANGALORE
Interest - Adjustment of ... ... ... ... ..... paid, as first the interest liability has to be adjusted. In fact, the appellants have stated that the principal amount which remained to be paid after the issue of the cheque amounts to Rs. 69,69,250/-. This amount had not been paid till the order dated 29-7-2004 of the Assistant Commissioner. Therefore, on this amount, interest is payable from 6-8-1998 to 30-4-2004 as claimed by the appellant. This amount comes to Rs. 99,40,978/-. The appellants are entitled for this amount in terms of the Hon rsquo ble Andhra Pradesh High Court rsquo s order and also the decided case laws which hold that when a debt carries interest, payments are appropriated in the first place, towards the interest. The law laid down by the Supreme Court cannot be ignored saying that there is no provision for such an adjustment in the Central Excise laws. In fine, we allow the appeal with consequential relief, if any. (Operative portion of this Order was pronounced in open court on conclusion of hearing)
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2006 (10) TMI 330 - CESTAT, CHENNAI
Refund - Protest lodged subsequent to payment - Appeal to Appellate Tribunal - Merger - Non-applicability of
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2006 (10) TMI 329 - CESTAT, BANGALORE
Demand and confiscation of goods ... ... ... ... ..... re-export, the adjudicating authority has clearly violated the Board s Circular cited by the learned Advocates. In the course of the hearing, the learned Advocate informed that in spite of the non-installation of the said machinery the appellants had completed the export obligation. In such circumstances, is it fair on the part of the Revenue to demand duty on the machinery in spite of Development Commissioner s permission to re-export the same. It would be fine for the Government of India and also for the Trade at large if the different Wings of the Government work in unison and harmony instead of moving at opposite directions as in the present case. The impugned order has no merits. Therefore, we set aside the same and allow the appeal. The Commissioner should take a decision on the request of the appellants for re-export in the light of the Development Commissioner s permission. (Operative portion of the order has been pronounced in the open Court on completion of hearing)
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2006 (10) TMI 328 - CESTAT, AHMEDABAD
Accountal of goods ... ... ... ... ..... demand/penal action requires to be rejected in the light of Tribunal rsquo s Order No. A-575-576/WZB/2004/C-I dated 18-3-2004, 2004 (170) E.L.T. 204 (T), in the case of the same appellants upholding the demand on duty free fabrics imported by the 100 EOU and diverted into the local market without being used in the manufacture of export garment and upholding the liability to confiscation and penalty, wherein no defence was raised on merits against the demand and hence confiscation, duty demand and penalty upon the 100 EOU is sustainable. Penalty on the second appellant also requires to be sustained in the light of his admission that he could not produce any documents evidencing legal import or purchase of the seized goods and that there was no relevance of the goods under seizure with goods claimed to have received back from the job workers. 4. emsp In the light of the above discussion we uphold the impugned order and reject the appeals. (Pronounced in the Court on 18-10-2006)
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2006 (10) TMI 327 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Motor vehicle ... ... ... ... ..... rs excluding driver for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey. The appellants have never claimed their vehicle to be stage carriage even Transport Commissioner has not given them the registration for the purpose of transport. In view of this, we find that the very basis on which the Commissioner has held the capacity of the vehicle to be less than 10 does not survive. As regards the admission of the appeal, we find that stay has been specifically refused in revenue rsquo s appeal and therefore admission of appeal will not amount to stay. In view of this, we hold that the appellants have been able to make out a prima facie case in their favour so as to call for complete waiver of pre-deposit of duty and penalty. We accordingly waive pre-deposit of duty and penalty and stay recovery thereof till the disposal of the appeal. The stay application is accordingly allowed. (Pronounced in court)
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2006 (10) TMI 326 - CESTAT, BANGALORE
Demand - Limitation - Extended period - Suppression ... ... ... ... ..... f the Notification. The written submission made by the learned Counsel in this behalf and circumstances referred to in the said Notification, the demands for larger period has to be set aside. Ordered accordingly. The benefit of cum-duty and Modvat has to be granted to the assessee. The demands for six months is sustainable, therefore, the matter is remanded to Original Authority to re-compute the duty by granting the benefit of cum-duty and Modvat credit for six months. The appellants shall be heard in the matter and matter shall re-adjudicated within four months from the receipt of this order. As the appellants had not deliberately suppressed any facts, therefore in the light of several judgments cited by the assessee, the imposition of penalty is not justified and penalty is set aside in the matter. Appeal is allowed by remand to the Original Authority to re-compute the duty as ordered. (Operative portion of this Order was pronounced in open court on conclusion of hearing)
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2006 (10) TMI 325 - CESTAT, AHMEDABAD
Stay/Dispensation of pre-deposit - Export Oriented Unit ... ... ... ... ..... fabrics from M/s. Marvel Fashions and further there is no finding prima facie that any goods in the present case are liable to confiscation. We therefore hold that strong prima facie case for waiver has been made out by the above four applicants who are 100 EOUs and hence waive pre-deposit of penalty imposed on them and stay recovery thereof pending their appeals. 7. emsp As regards Cosmos Trading Co., in the light of the fact that they were permitted to send 100 polyester woven fabrics of 58 rdquo and 100 dyed and/or printed fabrics to Marvel Fashions, Jetpur, and it is not disputed that Cosmos Trading Company supplied raw material to Marvel Fashions, prima facie, no evidence has been brought out so as to warrant imposition of penalty upon them. We therefore waive the requirement of pre-deposit of the penalty imposed on Cosmos Trading Co., and stay recovery thereof pending the appeal. 8. emsp Compliance by Marvel Fashions to be reported on 19-1-2007. (Dictated in the Court.)
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2006 (10) TMI 324 - CESTAT, NEW DELHI
Penalty - Suppression of facts ... ... ... ... ..... n-declaration of details of insurance claim cannot be held against the assessee as suppression of facts, as there was no statutory requirement to disclose insurance claims to excise. There is also no legal provision that insurance claim cannot include the tax paid on the damaged or lost goods. A charge of fraud or suppression would have had some force if the appellant had not paid duty on the damaged paper. Data on record also shows that the duty paid by the appellant on the damaged paper was almost 2/3rd of the credit taken on those goods. In these circumstances, we are of the view that the appellant rsquo s contention that the ingredients of Section 11AC are not present in this case and short levy of duty is not the result of any fraud or suppression of facts with intent to evade payment of duty merits acceptance. Accordingly, Section 11AC was not attracted. 9. emsp In the result, the appeal is allowed by setting aside the penalty imposed. (Order dictated in the open Court)
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2006 (10) TMI 323 - CESTAT, CHENNAI
Interest - Erroneous/refund - Relevant date ... ... ... ... ..... e not party to the fraud involved and vacated the penalty imposed on them under Section 11AC. Section 11AB would apply in cases where excisable goods were cleared without payment of duty due on them or refund was obtained erroneously. As per sub-section (2) of Section 11AB, the provisions contained in Section 11AB (1) will not apply in cases where duty had become payable or ought to have been paid before Finance Bill, 2001 had received the assent of the President. President had given assent to the Finance Bill, 2001 on 11-5-2001. As the assessee had obtained refund of Special Excise Duty on 19 January, 2001 and the same was not due to them, the amount was liable to be paid to the department on 19-1-2001 i.e. ought to be paid before 11-5-2001. Therefore the demand of interest affirmed by the lower appellate authority is not sustainable as argued by the appellants. According the impugned order is set aside and the appeal is allowed. (Order dictated and pronounced in open Court)
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2006 (10) TMI 322 - CESTAT, BANGALORE
Stay/Dispensation of pre-deposit ... ... ... ... ..... arate electrical engineers, prima facie, appellants cannot be called upon to pay Service Tax on this ground. With regard to the second element, the appellants had taken several pleas pertaining to the deductions which are available to them in terms of the invoice referred by the Commissioner in Para 6 of the order. The same has not been dealt by the Commissioner, to that extent the order is not a speaking order. Therefore, the plea of the appellant that they are liable to pay Rs. 20,000/- is required to be accepted. There is interest element also which the appellants are liable. Therefore, they are directed to pre-deposit an amount of Rs. 25,000/-(Rupees Twenty Five Thousand Only) within a period of two months from today. On such deposits, the balance of Service Tax stands waived and recovery stayed till the disposal of the appeal. Failure to comply will entail dismissal of the appeal. Call on to report compliance on 19th December 2006. (Pronounced and dictated in open Court)
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2006 (10) TMI 321 - CESTAT, CHENNAI
Stay of order ... ... ... ... ..... ombay High Court in Bussa Overseas and Properties Pvt. Ltd. 2003 (158) E.L.T. 135 . The High Court had considered the above case law and the statutory provisions under consideration in this case and observed that refund claim had to be filed for getting refund of excess customs duty paid at the time of import provisionally when the right liability was ascertained on finalisation of assessment. 5. emsp From the above discussion, it appears that no claim need be filed under Section 27 to obtain refund of security deposit made in fulfilment of a procedural requirement in terms of Section 18(1) for getting the goods provisionally assessed at the time of import. As prima facie, Section 27 does not apply in case of such refunds, the impugned order is apparently in order. 6. emsp In view of the above, prima facie, the Revenue has not made out a case for staying the operation of the impugned order. The stay application is accordingly dismissed. (Dictated and pronounced in open Court)
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2006 (10) TMI 320 - CESTAT, AHMEDABAD
Demand and penalty ... ... ... ... ..... t and imposed penalty of Rs. 1 lakh correctly. 3. emsp After hearing both sides and perusal of the records and the provisions as contained in Rule 173M of the Central Excise Rules, 1944 I find that the proviso to Sub-clause (ii) of clause 1 of Rule 173M provides for verification of particulars of the goods and it does not talk about the container. Once the contention of the learned Counsel of the appellant is that the goods were lying intact in drums duly verified by the department, it was imperative on them to come and verify the same. Since the departmental officers have not come of their own and there is no evidence available for any diversion of the goods elsewhere, the demand is not justified and is liable to be set aside. Consequently, the penalty is not attracted. 4.In view of the above I find sufficient force in the arguments of the advocate for the appellant. I, therefore, set aside the impugned order and allow the appeal. (Dictated and pronounced in the Open Court.)
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