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Case Laws
Showing 81 to 100 of 427 Records
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2003 (5) TMI 456 - CESTAT, NEW DELHI
Natural justice - Hearing - Demand ... ... ... ... ..... dispute that the appellants failed to comply with condition No. 2(vi) of the licence issued to them on 11-5-93 for establishment of the EHTP. The condition was that they must export the entire production in five years. According to this condition, they had to export goods worth Rs. 807.22 lakhs but they could export only goods worth a little over Rs. 17 lakhs. It is also not in dispute that the appellants ceased to be a 100 EOU w.e.f. 22-6-2000, beyond which date, they were not entitled to the benefit of Notification No. 96/93-Cus., dated 2-3-93 (as amended). There is no challenge with regard to the quantum of duty demanded in the impugned order, nor to the rate of interest. In the circumstances, we uphold the demand. However, the redemption fine of Rs. 1 crore and the penalty of Rs. 30 lakhs appear to be excessive in the facts and circumstances of the case and we reduce the same to Rs. 30 lakhs and Rs. 10 lakhs respectively. The appeal stands disposed of in the above terms.
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2003 (5) TMI 455 - CESTAT, MUMBAI
... ...
... ... ..... of receipt, prior permission should have been obtained from the competent authority. In this case such a permission has not been obtained by the appellant before the clearance beyond the period of six months and as such the demand raised is valid and has rightly been confirmed by the adjudicating authority. 2. emsp After hearing ld. JDR and perusal of the records, I do not find any legal flaw in the order passed by the adjudicating authority. I, therefore, dismiss the appeal filed by the appellant.
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2003 (5) TMI 454 - CESTAT, MUMBAI
Demand - Jurisdiction ... ... ... ... ..... d on the judgment of the Supreme Court in State of Karnataka v. Muniyalla - AIR 1985 SC 470. However, the judgment of the Supreme Court in CCE v. Oil and Natural Gas Commission had not been pronounced when the matter was decided by the Commissioner (Appeals). In that judgment, the Court specifically considered the very point that is before us, the validity of a notice issued by an Assistant Collector invoking the extended period when the law required to be issued by the Collector and has found that the notice was not issued by the competent authority. The ratio of that judgment binds us. It only remains to add that by virtue of the public notice that was issued communicating to the public the decision to issue notice in such cases by the Commissioner the department cannot take a contrary stand. It has therefore to be held that this notice issued by the authority lower than the Collector was not valid. 5. emsp The appeal is accordingly allowed and the impugned order set aside.
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2003 (5) TMI 453 - CESTAT, NEW DELHI
Appeal beyond show cause notice - Interest ... ... ... ... ..... very narrow compass, we take up the appeal for disposal after hearing Ms. Charul Baranwal, learned SDR and after perusal of the records. On a query from the Bench, learned SDR intimated that the provisions of Section 11AB of the Central Excise Act for imposing interest were not mentioned in the show cause notice dated 19-1-1998. As the provisions of the said section were not invoked in the show cause notice, the question of imposing interest under Section 11AB of the Act does not arise. Accordingly, there is no merit in the appeal filed by the Revenue which is rejected.
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2003 (5) TMI 452 - CESTAT, MUMBAI
Valuation - Job work ... ... ... ... ..... It is settled law that where the Department sets out to recover duty short-levied, it is open to the assessee to reply to such a procedure by claiming that the assessable value has not been correctly determined. The appellant being a job worker was required to pay duty on the cost of manufacture of the goods. Determination of the correct assessable value of the goods manufactured by it which is what the show cause notice dealt with would require be based on such a cost. The contention of the appellant that the value should be calculated on the basis of the cost of manufacture sounds acceptable. The counsel for the appellant says that the evidence of the cost of manufacture will be provided to the Assistant Commissioner within three months from the receipt of this order. The Assistant Commissioner thereupon shall decide upon the acceptability of the figures and determine the correct assessable value and proceed to pass orders demanding, if so justified, any duty short-levied.
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2003 (5) TMI 451 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... nvoice and the export declaration filed at Antwerp. Prima facie we are of the view that these documents which were obtained through diplomatic channel are not liable to be rejected. There is sufficient material to correlate these documents with the import made by the appellant. It was on this basis, the adjudicating authority had come to the conclusion that the transaction value declared by the importer has to be discarded. Prima facie we agree with the above finding of the adjudicating authority. 5. emsp Under similar circumstances by order dated 24-1-2002 we directed the applicants to deposit the duty portion of the demand. We find that similar order would be just and proper in these cases also. Therefore, we direct the appellant M/s. Genuine Spares (India) Ltd. to deposit the duty portion of the demand within six weeks. There will be a stay of recovery of redemption fine and penalty imposed on all the appellants. The appeal to come up for reporting compliance on 11-7-2003.
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2003 (5) TMI 450 - CESTAT, MUMBAI
Remand - Requirement of ... ... ... ... ..... e not open to and willing to consider the material which the importers are producing to prove their case. The authorities in utter dis-regard of the directions in remand have again taken the same view. The Commissioner has therefore appropriately set aside the order and allowed the appeal. When the lower authorities crossly dis-regard the directions in appeal, further purpose will be served by remanding the matter once again back to them for re-consideration of the material, which the importers have producing. 5. emsp In this view the following observation of the Commissioner in the impugned order has to be upheld - ldquo It is also observed that although the matter has been the remanded to the original authority twice with specific directions but he has ignored those directions and repeated the earlier order. In view of the above the impugned order is bad in law and liable to be set aside. rdquo 6. emsp In view of the finding the present appeal filed by Revenue is dismissed.
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2003 (5) TMI 449 - CESTAT, MUMBAI
Demand - Cenvat/Modvat - Penalty ... ... ... ... ..... en by them. He submits that in view of the reversal, the demand of 8 on the value of the exempted goods amounting to Rs. 1,03,200/- is not sustainable. Shri Hemant Kotikar, learned S.D.R. appearing for Revenue submits that the amount has been demanded as reversal was made after passing the order-in-original. 2. emsp In view of the fact that the appellants have already reversed the credit taken on motors used for the exempted goods and there is no doubt about the identity and quantity of inputs used in the exempted goods, the demand of 8 on the value of exempted goods is not sustainable. Therefore, I set aside the demand. However, the appellants have violated to provision of rule and therefore, they are liable to pay some amount of penalty. Considering all aspects of the case, I reduce the penalty from Rs. 10,000/- to Rs. 5,000/-. 3. emsp The impugned orders are modified to the extent indicated above. The appeal is allowed in above terms. The stay application stands dismissed.
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2003 (5) TMI 448 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... d name at all. The brand name is affixed on the fan guard. The fact that the guard and the blade are bought and sold together does not, in our view, have any significance. They are not even fitted together or can be used together. On the contrary, if they are fitted together, neither the blade nor the guard can be put to use the blade has to be screwed on the root of the fan and has to be in a position to protect without being attached to anything else. The extent to which the adjudicating authority relied on this fact has been verified. 4. emsp Having regard to these facts, we think a deposit of Rs. 4 lakhs by the applicant is appropriate. Accordingly we order that on such deposit being made by the applicant within eight weeks from the receipt of this order, and evidence produced to the Commissioner (Appeals), his order is set aside, the matter remanded to him for disposal of the appeal, in accordance with law. On failure to do so, the appeal before us shall stand dismissed.
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2003 (5) TMI 447 - CESTAT, NEW DELHI
Cenvat/Modvat - Penalty on Director of company ... ... ... ... ..... nd evidence in this case, utilization of the inputs for the manufacture of paper and paper board stands established. We, therefore, hold that, in respect of the three chemicals, the appellants were entitled to the Cenvat credit for the period August, 2000 to March, 2001. Accordingly, we set aside the order of the Commissioner and allow the appeal of M/s. Magnum Paper Ltd. 8. emsp The appeal of Shri Parveen Jain is against the penalty of Rs. 10 lakhs imposed on him under Rule 209A of the Central Excise Rules. The Commissioner imposed the penalty on the ground that the appellant was the Director of the Company at the material time and was responsible for wrong availment of the Cenvat credit. As we have already found that the company was entitled to the Cenvat credit, the allegation of wrong availment/utilization of Cenvat credit does not survive. The penalty imposed on the appellant is, therefore, set aside and his appeal is also allowed. 9. emsp Both the appeals stand allowed.
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2003 (5) TMI 446 - CESTAT, BANGALORE
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... ue the EDP copy is not a valid document and further goods were not consigned to the appellants. 2. emsp I do not find any infirmity in the impugned order passed by the Commissioner (Appeals) in allowing the Modvat credit on EDP copy since EDP copy is also considered to be valid document. Accordingly, the Department fails and in the result appeal dismissed.
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2003 (5) TMI 445 - COMMISSIONER OF CENTRAL EXCISE (APPEALS), CHENNAI
Demand and penalty - Modvat declaration ... ... ... ... ..... ing but not admitting that the Assistant Commissioner was not available then to receive their option, there was no bar to approach the Assistant Commissioner on the next working day. 3. emsp In facts relating to this kind there would be no end to the mutual recriminations, charges and counter charges. It does not require much enquiry, acumen or profound commonsense to realise that the factual developments here are both tragic and ridiculous. I am reminded of a couplet by Lorenzo D.W. ldquo You can and you can rsquo t You will and you won rsquo t You rsquo ll be damn rsquo d if you do You rsquo ll be damn rsquo d if you don rsquo t rdquo . 4. emsp The plight of this Appellant is very similar. Anyway both the Appellant and the Respondent are to be forgiven for the profundity of their confusion caused by a spell of holidays. Duty and penalty demanded are not sustainable in the peculiar facts and circumstances of this case. 5. emsp Appeal allowed with consequential relief if any.
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2003 (5) TMI 444 - CESTAT, BANGALORE
... ...
... ... ..... e on the point at issue. Also I take note of the submissions made by the Counsel for appellants that no penalty could be imposed even with reference to the provisions under Rule 52A(8) since the assessee have not contravened any provisions to attract penalty under the said rules. It is a clear case wherein the Commissioner has imposed penalty under Rule 173Q only for the contravention with reference to the Rule 52A of the Central Excise Rules. To attract penalty under Rule 173Q, there must have been clandestine removal of the goods or there must have been contravention of any of the rules with an intention to evade payment of duty, as it was rightly pointed out by the Counsel. Admittedly, in the instant case, there has been no evasion of duty nor duty was demanded as such. In the facts and circumstances of this case, I do not find any justification to impose penalty under Rule 173Q of the Central Excise Rules. Accordingly, appellants succeed. In the result, appeal is allowed.
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2003 (5) TMI 443 - CESTAT, NEW DELHI
Demand - Limitation - Penalty ... ... ... ... ..... ction 11AC and interest under Section 11AB of the Central Excise Act cannot be imposed on the ground that the Appellants filed a declaration claiming the benefit of the Notification. For the same reasons, no penalty under Rule 173Q(1) of the Central Excise Rules is imposable as declaration has been filed claiming the benefit of exemption Notification and the issue revolves round the interpretation of Tariff. We, therefore, set aside the penalty imposed on the Appellants and demand of interest under Section 11AB of the Central Excise Act. 11. emsp As the penalty and interest have been set aside, we are not going into other issues regarding availability of Notification No. 6/2000-C.E. and whether the clearances from two units can be clubbed for the purpose of determining the availability of exemption under a Notification and also the question as to whether the impugned goods are air-conditioning machine or only parts thereof. Both the appeals are disposed of in the above terms.
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2003 (5) TMI 442 - CEGAT, NEW DELHI
Adjudication - Delay - Prejudice ... ... ... ... ..... ade a specific request for supply of copies of the Income Tax records and other relied-upon documents and to permit them to cross-examine the listed witnesses. The adjudicating authority apparently has not considered this request in its order. It has passed the order in gross violation of the principles of natural justice. In the result, we set aside the order of the Commissioner and direct him/her to adjudicate afresh on all the issues in the case after supplying copies of all the relied-upon documents to the parties and allowing them to cross-examine such witnesses (cited in the list submitted by the appellants) as they might want to cross-examine. Needless to say that a reasonable opportunity of being personally heard shall also be given to the parties by the Commissioner before passing final order and that, in view of the oldness and allied aspects of the case, the final order shall be passed as expeditiously as possible 5. emsp The appeals stand allowed by way of remand.
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2003 (5) TMI 441 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit - Remission of duty ... ... ... ... ..... on of sugar bags from RG I as the Appellants don rsquo t have any Authority to delete the same from the RG I register. 4. emsp We have considered the submission of both the sides. It is not the case of the Applicants that the application for remission of the duty submitted by them has been decided by the proper Authority that till the decision is taken on remission application, the Applicants, have no Authority to delete the bags said to have been destroyed in fire from the RG I Register. The Applicants thus have not made out a strong prima facie case for waiver of entire amount of duty. Considering the financial position of the Applicants, we direct them to deposit Rs. 5 lakhs within six weeks from today and on complying with this direction, there will be waiver of pre-deposit of remaining amount of duty and entire amount of penalty and the recovery of the same will remain stayed during the pendency of the Appeal. The matter will come up for reporting compliance on 8-7-2003.
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2003 (5) TMI 440 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit - Appeal - Restoration of ... ... ... ... ..... Section 35F of the Act and their ROA application be still kept pending. The Counsel has also referred to the ratio of law laid down by the Hon rsquo ble Gujarat High Court in the case of Hussein Haji Harun v. Union of India - 1995 (77) E.L.T. 803 (Guj.) wherein it has been observed that Tribunal has power to modify the stay order and to consider restoration of the appeal. But such power can be exercised only if the appeal is pending. It is only then the request for modification of the stay order can be considered. When the appeal is not pending before the Tribunal, the question of consideration of the modification of the stay order does not arise. Therefore, the ratio of law laid in that case is not attracted to the appellants case. As requested by the learned Counsel, I allow two months time to the appellants for making compliance with the Section 35F and on making the compliance, their ROA application will be considered and the appeal will be heard. To come up on 14-7-2003.
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2003 (5) TMI 439 - CEGAT, BANGALORE
Valuation - Abatement - Wholesale buyer - Words and phrases - Demand - Limitation - Declaration - Penalty - Imposition of
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2003 (5) TMI 438 - SETTLEMENT COMMISSION, CUSTOMS & CENTRAL EXCISE,
Settlement Commission - Admission - Fraud in duty evasion ... ... ... ... ..... admitted duty liability as the Company is undergoing some financial hardships. The applicant does not have any supporting evidence such as balance sheet etc., to prove their contention of financial hardships. 11. emsp The Commission has gone through the submissions made by the applicant and the Revenue. The Commission finds that the applicant fulfils the conditions of section 32E of Central Excise Act. The application is allowed to be proceeded with sub-section (1) of section 32F of the Central Excise Act. The applicant shall pay the admitted duty liability of Rs. 16,22,187/- (Rs. 42,22,187 - Rs. 26,00,000) within 30 days of the receipt of this order. The Commissioner shall adjust the deposit of Rs. 26 lakhs towards the admitted duty liability. The Revenue and the applicant shall keep the Commission informed of the amount paid. 12. emsp Attention of all concerned is drawn to provisions of Section 32-I(2) of the Central Excise Act, 1944. All concerned may be informed suitably.
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2003 (5) TMI 437 - SETTLEMENT COMMISSION, CUSTOMS & CENTRAL EXCISE, N
Settlement Commission - Admission ... ... ... ... ..... through the case records and submissions made by the learned Advocate of the applicant/Co-Applicants and learned representative of Revenue. The applicant fulfils the conditions of Section 127B of the Customs Act, 1962. Therefore, the Commission allows the application filed by the Applicant and the two Co-Applicants to be proceeded with under sub-section (1) of Section 127C of the Customs Act, 1962. The applicant shall pay an amount of Rs. 5,70,177/- (Rs.11,20,177.00 - Rs. 5,50,000.00 Rs. 5,70,177.00) within 30 days of receipt of this order. The request of the ld. Advocate to pay in two instalments is rejected as there is no evidence to indicate any financial hardship faced by the applicant. The Commissioner shall adjust the amount of Rs. 5,50,000/- towards admitted duty liability, which has been appropriated after encashment of bank guarantee. Attention of all concern is drawn to sub-section (2) of Section 127F of the Customs Act, 1962. All concerned may be informed suitably.
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