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Case Laws
Showing 201 to 220 of 489 Records
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2006 (10) TMI 319 - 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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2006 (10) TMI 318 - CESTAT, BANGALORE
Penalty - Abetment in illegal import ... ... ... ... ..... ment has been analysed and it has been clearly held that a person is said to abet when such person instigates or participates in commission of an offence. In this present case, the Revenue has failed to establish that the appellant has abetted and has instigated or participated in the commission of an offence. We find the appellant is innocent in the matter. He held bona fide belief that furnishing the address to his friend to import licit goods would not be against law. However, his friend has misused his confidence. The same ratio has been laid down in the A.P. Sales (supra) by this Bench in the light of the Apex Court and High Court judgments. These citations are clearly applicable to the facts of this case. The Revenue has not established that the appellant has abetted in the offence for imposition of penalty, therefore, the imposition of penalty on the appellant is set aside by allowing the appeal with consequential relief, if any. (Pronounced and dictated in open Court)
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2006 (10) TMI 317 - CESTAT, BANGALORE
Cenvat/Modvat - Utilization of credit ... ... ... ... ..... ns of the law. I pass the following order ORDER The appeal filed by the appellants is allowed with consequential benefits. rdquo We notice from the above findings that the Commissioner (Appeals) has clearly gone into the question in detail and found that for answering the question in the matter, it is necessary to look into the provisions of Rule 57F(4) as it stood, after amendment, vide Notification No. 11/95-C.E.(N.T.) dated 16-3-1995 applicable during the relevant period. After due examination of the wordings, he has found that the action of the assessee in transferring the credit is in terms of law. From the grounds, we do not find any plea that the amended rule prohibits the utilization of the credit. Therefore, the application of the ruling rendered by the Tribunal in the case of Samtel (India) Ltd. v. CCE (cited supra) is correct. The order is therefore, legal and proper. There is no merit in this appeal and the same is rejected. (Pronounced and dictated in open Court)
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2006 (10) TMI 316 - CESTAT, MUMBAI
Demand - Clandestine removal - Penalty, imposition of ... ... ... ... ..... he authority. However, as rightly pointed out by the learned SDR. the notice itself proceeds to invoke provisions of Rule 9(2) read with Section 11A of the Central Excise Act and therefore once the Commissioner (Appeals) has accepted that the product in dispute was not complete pressure cooker falling for classification under CETA sub-heading 7323.10, but was covered as ldquo Others rdquo under CETA sub-heading 7323.90 he was required to uphold the demand. In this view of the matter we set aside the impugned order by upholding the duty demand raised and confirmed by the original authority as sustainable. However, in the face of the fact that the demand is within the normal period of limitation and also noting that the assessee had filed a declaration, no case for imposition of penalty is made by the Revenue. We, therefore, restore the order of the adjudicating authority only in so far as it relates to demand of duty. 2. emsp The appeal is allowed as above. (Dictated in Court)
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2006 (10) TMI 315 - CESTAT, MUMBAI
Appeal - Limitation ... ... ... ... ..... xtended to an application contemplated by it. Only those which are procedural in nature can apply to such an application rdquo . His submission is that the provisions with regard to filing of an appeal as contained in Section 129D are pari materia with Section 35E of the Central Excise Act, 1944. 5. emsp After hearing, perusal of the records and the case laws relied on by the respondent, I am very clear in my mind that the provisions of sub-section (2) of Section 129D read with sub-section (4) as referred to by the Ld. DR are not attracted in this case because sub-section (2) clearly refers to the Order passed by the subordinate authority to the Commissioner of Customs. Whereas in the present case the order has been passed by the Commissioner himself. Therefore, the appeal is clearly time-barred. 6. emsp The appeal is, therefore, dismissed. (Dictated in Court) Note Text corrected as per Corrigenda Published in 2007 (218) E.L.T. 719-720 (31st December, 2007 - Vol. 218 Part 5)
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2006 (10) TMI 314 - CESTAT, BANGALORE
Customs House Agent’s licence - Suspension of ... ... ... ... ..... specific person has handled the package, such a conjecture cannot be drawn. The appellants have also admitted about the V. A. Mary Das being their canvassing agent. It is also not the charge that V. A Mary Das or P. A. Gigesh has handled the packages. They had not admitted about handling the package and there were no statements from them. Therefore, in the absence of evidence, the impugned order is not sustainable in law. The learned JDR relied on the ruling rendered in the case of S.S.V. Bhadra Shipping Agencies (supra), in this case, there was evidence of unauthorised person handling the baggage. They were several collaborative evidence and admission in the statements, therefore, the Tribunal uphold the charge. In the present case, there is no evidence of any sought, the Commissioner has upheld the charge based on surmise and conjecture. The same is not correct in law and hence, the impugned order is set aside by allowing the appeal. (Pronounced and dictated in open Court)
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2006 (10) TMI 313 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... the Sick Industrial Companies (Special Provisions) Act, 1985 cannot be invoked by the appellant. No material is placed on record to show the actual financial condition of the applicant including assets and the expenditure incurred by the company. However, while making the order of pre-deposit, we are keeping in view the fact that the applicant is a sick but running unit. 13. emsp Having regard the aforesaid facts and circumstances of the case, we are of the view that the applicant has not made out any case for total waiver of pre-deposit of duty and penalty. Keeping in view the relevant aspects referred to hereinabove by us, we direct that there shall be interim stay of the impugned order of recovery of duty and penalty on the applicant rsquo s depositing Rs. 5 lakhs (Rupees five lakhs only) within eight weeks from today, failing which the appeal shall be dismissed. Post the matter for reporting compliance on 5-1-2007. (Dictated and pronounced in the open Court on 31-10-2006)
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2006 (10) TMI 312 - CESTAT, MUMBAI
... ...
... ... ..... m of such retail sale price shall be deemed to be the retail sale price for the purpose of this Section rdquo , we hold that, since the tomato ketchups, which is the product in dispute, clearly bears two MRP, it is the higher of the MRPs which is to be treated as retail sale price for the purpose of Section 4A and it is immaterial that the respondents herein sold the product at a price not higher than the lower MRPs declared on the product. 3. emsp In this view of the matter, we set aside the impugned order of the Commissioner (Appeals) who had extended the benefit by holding that it was the reduced MRP which has to be taken into account as retail sale price, and allow the appeal of the Revenue. (Dictated in Court)
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2006 (10) TMI 311 - CESTAT, MUMBAI
Stay of order - Thiourea 99% - Classification of ... ... ... ... ..... . 2. emsp We have heard both sides. We find that the Commissioner (Appeals) has noted that lsquo Thiourea 99 rsquo is specifically covered by the tariff entry under Chapter 29 under heading 290390301. The judgment of the apex Court in the case of Union of India v. Pesticides Mfg. Formulators Association of India - 2002 (146) E.L.T. 19 (S.C.) which is relied upon by the Revenue in the present appeal and application does not cover, prima facie, lsquo Thiourea 99 , an item which is specifically covered under the tariff entry and therefore, prima facie, there is no ground to interfere with the Commissioner (Appeals) order of classification which is to be determined when the appeal is taken up for regular hearing and not at this stage in view of the specific tariff entry, prima facie, covering the product in dispute under Chapter 29. We, therefore, see no ground for granting the prayer for stay of operation of the impugned order and accordingly reject the same. (Dictated in Court)
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2006 (10) TMI 310 - CESTAT, MUMBAI
Cenvat/Modvat - Capital goods - duty paid on the machines/ equipments of a sugar plant - HELD THAT:- We find that the facts of the present case are similar to those present in the case of Gujarat Ambuja Cements Ltd.[2000 (8) TMI 178 - CEGAT, NEW DELHI]. In this case also parts and components were bought/manufactured by the contractor and the invoices were issued in the name of the manufacturer of the final goods in whose premises the said parts and components were finally assembled and machinery installed. While in the case of Gujarat Ambuja Cements, the credit has been extended mainly on account of the fact that Rule 57T(7) did provide for availment of credit in case parts and machinery got erected through a job worker, the Tribunal did make an observation that the credit can be allowed under the provisions of Rule 57Q itself without taking resort to provision of Rule 57T(7).
However, in the case of NRC Ltd.[2001 (6) TMI 114 - CEGAT, MUMBAI], the Tribunal did not refer to the provision of Rule 57T(7) and allowed the credit on the basis of Rule 57Q under which the parts and components of capital goods are also entitled to Modvat credit as inputs for the manufacture of goods to be produced out of such machinery for the installation of which such parts have been used. It has been further observed by the Tribunal that it is immaterial whether the payment for the components/accessories has been made by the contractor or the manufacturer of finished goods as it is the factory of the manufacturer of finished goods in whose premises components/parts of machinery is installed which in turn is used for the manufacture of finished dutiable goods.
Similar definition of inputs for the purpose of capital goods exists in Rule 2(b) read with Explanation II of the Cenvat Credit Rules, 2002. We accordingly follow the same and hold that the appellants shall be entitled to the credit of duty paid on such components and parts which are used in the manufacture of sugar plant installed in their premises.
The order of the Commissioner is accordingly set aside and the appeal is allowed.
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2006 (10) TMI 309 - CESTAT, MUMBAI
Valuation - Enhancement of value - Baggage - Declaration - Redemption fine and penalty ... ... ... ... ..... orted at higher value. Even the appraiser report was never disclosed to the appellant. Further, no evidence about the correctness of the invoice produced by the appellants has been adverted to. As such, it is not possible for us to accept the valuation adopted by the revenue and to reject the invoice produced by the appellant. 6. emsp Inasmuch as the value declared by the appellants is to the tune of Rs. 1 lakh and there has been admitted violation of the baggage Rule, calling for confiscation of the goods, we reduce the redemption fine from Rs. 8 lakhs to Rs. 75,000/- (Rupees seventy five thousand only) and penalty from Rs. l.60 lakhs to Rs.60,000/-(Rupees sixty thousand only). The fact that the goods are electronic items and are reported to have not been cleared by the appellant till date and have become obsolete has also weighted with us in reducing the redemption fine and penalty amount. 7. emsp The appeal is disposed off in above manner. (Pronounced in Court on 27-10-06)
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2006 (10) TMI 308 - CESTAT, NEW DELHI
Confiscation and penalty ... ... ... ... ..... the subsequent de-registration of the said inspection agency would not in any way invalidate the certificate given by inspection agency. The pre-inspection certificate issued by the said inspection agency was correct in its entirety inasmuch as the Customs Authorities did not find anything offending after conducting a 100 examination of the consignment, due to the fact that the inspection agency was de-registered. 6. emsp Since, the pre-inspection certificate granted by the inspection agency is correct to the extent that there was no offending goods in the consignment, and the fact that the said inspection agency was also an accredited inspection agency on the date when on which the certificate was issued by them, I find that the impugned order confiscating the goods imposing penalty is not sustainable and is liable to be set aside. Accordingly, the impugned order is set aside and appeal is allowed with consequential relief, if any. (Dictated and pronounced in the open Court)
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2006 (10) TMI 307 - CESTAT, BANGALORE
Classification - Poultry keeping machinery parts - granting the benefit of exemption notification - poultry cages of Iron and Steel - HELD THAT:- We are of the considered opinion that the Revenue has failed to establish that the poultry equipment can be treated as articles of iron and steel. The articles have specific use as poultry equipment and the item is understood in the trade as well as in the commercial parlance as poultry equipment which has a specific description under Chapter Sub-Heading No. 8436 of the Central Excise Tariff.
We notice that the Madras Bench in the case of CC v. M/s. Chowdary Enterprises [1996 (12) TMI 201 - CEGAT, MADRAS] by Final Order has also decided the classification of this very item under Chapter Heading No. 8436.99 and has rejected the Revenue’s claim for classification under Chapter Heading 73. In view of the correct order passed by the Commissioner and supported by the judgments cited including the Tribunal ruling of Chennai Bench in the case of CC v. Chowdary Enterprises (supra), we find no merit in the present appeal and dismiss the same.
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2006 (10) TMI 306 - CESTAT, CHENNAI
Demand - Waste and scrap ... ... ... ... ..... ice is not sustainable for the simple reason that the goods in question were not shown to be ldquo waste and scrap rdquo falling under SH 7204.90. The Tribunal rsquo s decision in K.M. Sugar Mills (supra) is also in support of the assessee rsquo s case. It was held in that case that the burden was on the Revenue to prove that waste and scrap arose out of capital goods on which Modvat credit had been availed of so that duty could be demanded on such waste and scrap in terms of Rule 57S(2) of the Central Excise Rules, 1944. This burden was not discharged by the department in the present case. 6. emsp Hence the assessee rsquo s appeal against the demand of duty and penalty has to be allowed and it is ordered accordingly. Consequently, the department rsquo s appeal No. E/1753/99 gets dismissed. The remaining appeal of the department (E/1754/99) against dropping of Section 11AC penalty also gets dismissed. (Operative portion of the order was pronounced in open Court on 26-10-2006)
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2006 (10) TMI 305 - CESTAT, CHENNAI
Strictures against Department ... ... ... ... ..... ike to verify the position and report to the Bench. She is at liberty to do so. 3. emsp It is on record that the party requested the Asst. Commissioner to issue a certificate evidencing withdrawal, by them, of the ldquo UNDER PROTEST rdquo remark as early as on 26-9-2006. We are at a loss to understand the difficulty, if any, of the officer in issuing such a certificate. The officer was requested to certify a fact which was known to him viz. that the party withdrew the ldquo UNDER PROTEST rdquo remark. We are unhappy with the inaction of the officer, which tends to delay the proceedings of the Tribunal thereby affecting administration of justice in the case. We expect the department to help us administer justice in all cases expeditiously. Hence we are inclined to direct the Asst. Commissioner to file an affidavit on the above matter, which should come on record within two weeks. The matter is posted to 20-11-2006 for the above purpose. (Dictated and pronounced in open court)
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2006 (10) TMI 304 - CESTAT, MUMBAI
Propylene Tetramer - Classification of - Motor spirit ... ... ... ... ..... case that the impugned product have a flash point less than 25 deg C nor it has been so alleged either in the show cause notice or in the order-in-original or in the Commissioner (Appeals) rsquo s order. Further there is no evidence to show that the product imported is suitable for use either by itself or in admixture with any other substance as fuel in spark ignition engine. In the absence of any such evidence the goods cannot be classified Chapter Heading 2710.90 as has also been held by CESTAT in its earlier decisions in the case of Commissioner of Central Excise, Meerut-II v. Tuftween Petrochemical Ltd., Jagdamba Petroleum P. Ltd. v. Commissioner of C. Ex., Noida, Silverchem Central Excise, Mumbai (cited supra). Following all these decisions, we hold that the product is rightly classifiable under Chapter Heading 2710.90 on which no special excise duty is payable. We accordingly set aside the order of the Commissioner (Appeals) and allow the appeals. (Pronounced in Court)
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2006 (10) TMI 303 - CESTAT, NEW DELHI
Central Excise – Power driven pump sets – Power driven pump amount to manufacture as by putting together a pump, an engine and platform in single carton – Benefit of exemption admissible to appellant in regard to IC engines cleared along with pump sets and platform in single carton and duty was discharged on power driven pump
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2006 (10) TMI 302 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... ctional Superintendent, who has based his report, on the basis of such manipulated production report, and accordingly extended period has been rightly invoked. 10. emsp We have considered the submissions. We find that the applicants have not been able to make out a prima facie case so as to call for complete waiver from pre-deposit of duty and penalty, inasmuch as prima facie there is evidence with the department to show that the production records were manipulated to show consumption of nut coke. We therefore direct the applicant to pre deposit Rs. 20.00 lakhs (Rupees Twenty lakhs only) towards duty within eight weeks and report compliance on 28-12-06 and on such compliance there shall be waiver of pre-deposit of balance of amount of duty and penalties imposed on various applicants and recovery there stayed till disposed of the appeals. Failure to comply with the direction shall result in vacation of stay and dismissal of appeals without further notice. (Pronounced in Court)
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2006 (10) TMI 301 - CESTAT, MUMBAI
Penalty - Quantum of ... ... ... ... ..... made factual mistake as the balance interest of Rs. 7,000/- along with penalty amount was also paid by him by a single challan within 30 days and in proof hereof he submitted a copy of the TR6 challan showing the payment of both the interest and penalty within 30 days. In view of the same, it was prayed that the Commissioner (Appeal) rsquo s order should be set aside. 3. emsp Heard both sides. 4. emsp We find from the TR6 challan produced by the appellants that the entire amount of duty along with interest and 25 of penalty amount has been paid within 30 days of the date of determination of duty by the Assistant Commissioner and therefore as per the provision of proviso to Section 11AC the penalty required to be imposed under Section 11AC has to be to the extent of 25 only. Since this amount has already been paid, no further penalty is payable. Commissioner (Appeals) order is accordingly set aside and appeal is allowed. Stay application also disposed off. (Dictated in Court)
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2006 (10) TMI 300 - CESTAT, MUMBAI
Clandestine removal - Proof of ... ... ... ... ..... rs that the assessee had accepted the difference in the stock position of the CTD bars and melting scrap and paid the duty. The contention of the assessee is that the shortage in CTD bars was due to accumulated weight difference over a period of time. The adjudicating authority found fault on this aspect and treated this/suppression of fact hence imposed penalty of Rs. 1,000/-. The learned JDR submits that in view of the latest decision of Punjab and Haryana High Court wherein the guidelines have been set out about imposition of penalty in the nature of clandestine removal of goods, shortage, etc. there appears nothing of that sort in the present appeal. There was only weight difference over a period of time in respect of CTD bars. Therefore, the matter does not come within the purview of clandestine removal. The impugned order passed by the Commissioner (A) is to be upheld. Hence, the Revenue appeal is dismissed. The cross objection is also disposed of. (Pronounced in court)
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