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Case Laws
Showing 121 to 140 of 6338 Records
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2003 (12) TMI 564 - CESTAT, MUMBAI
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... ... ..... ued at the instance of the Pratishtan, when confronted with the notice and adjudication proceedings demanding duty. In point of fact, a letter dated 20-1-1994 of the Gujarat Rajya Khadi Gramudyog Board clearly indicates that no recognition had been given to the appellant rsquo s unit at Iyava. The contention of the representative of the appellant that this letter was not made available to it cannot be accepted. This letter forms part of the show cause notice and the annexure detailing documents relied upon and the notice itself indicates that these documents were available for inspection. The order also records the admission made by the President of the appellant that on various occasions in February, March and July, 1994 it has not been recognised by State or Central Organisation. We do not think that the correspondence subsequently obtained prevails over these statements and therefore conclude that the Commissioner has rightly denied the exemption. 5. emsp Appeal dismissed.
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2003 (12) TMI 563 - CESTAT, MUMBAI
Refund - Cenvat/Modvat - Notification No. 29/96-C.E. ... ... ... ... ..... e, it is apparent that the respondents could have utilised the accumulated Modvat credit for payment of duty on goods cleared for home consumption or for export. Their only grievance is that, they were not allowed to do so through some verbal instructions. If they had done so, they would also run the risk of not being eligible to obtain the refund, on account of breach of conditions laid down in Notification 29/96-C.E., dated 3-9-1996. In my view, the adjudicating authority has correctly disallowed the refund claim on the aforesaid ground and therefore the impugned orders passed by the Commissioner (Appeals) cannot be sustained for the reason that Notification 29/96-C.E., does not contain any exception for granting refund, in the event the manufacturer does not utilise the credit for payment of duty for home consumption/export, for whatever reason. 4. emsp Consequentially, I allow the department rsquo s appeal and the impugned order of the Commissioner (Appeals) is set aside.
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2003 (12) TMI 562 - CESTAT, MUMBAI
Cenvat/Modvat - Capital goods ... ... ... ... ..... s) in his order has clearly brought on record that, in terms of Board rsquo s Circular No. 276/110/96-TRU, dated 2-12-1996, the classification of parts is irrelevant and as long as these are parts, components and accessories to be used with the capital goods, the credit is admissible. The learned Counsel appearing for the respondents submits that the item ICAM systems are component parts of programmable controller and the programmable controller is a part of spinning machine. 4. emsp On these observations, I find no merit in the appeal filed by the Revenue. The same is accordingly dismissed.
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2003 (12) TMI 561 - CESTAT, MUMBAI
Cenvat/Modvat - Capital goods ... ... ... ... ..... tification 7/99-C.E. (N.T.), dated 9-2-1999. It has also been held that the cases which are pending will be covered by the provisions of the said notification. 6. emsp In the interest of justice, it would therefore be necessary to remand the matter back to the Deputy Commissioner of Central Excise concerned for de novo examination of the issue, especially the provision where non-filing of the declaration is also condoned. The adjudicating authority shall be at liberty to also examine the aspect of availment of depreciation under the Income-tax Act. 7. emsp Accordingly, the orders passed by the lower authorities are set aside and the matter remanded to the Assistant Commissioner/Deputy Commissioner of Central Excise for fresh determination of the issue regarding admissibility of the Modvat credit, after affording necessary opportunities to the appellants to present their case, and decide the matter in accordance with law. 8. emsp The appeal is allowed by way of de novo remand.
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2003 (12) TMI 560 - CESTAT, NEW DELHI
Import - OGL - Valuation - Strictures against Commissioner ... ... ... ... ..... actual user rdquo . Question arises, was not this demurrages and loss entirely avoidable. Customs Act provides for provisional assessment of goods where any enquiry is required to be done with regard to value etc. before the final assessment of the goods is made. An order of provisional assessment could easily have been made in the present case, if the Commissioner wanted to be kind or helpful to an actual user/importer. Instead, the goods were detained and proceedings were carried out, and the rigour of a harsh order is sought to be mitigated by a supposedly lower redemption fine. This is wisdom after the event. A procedure could be laid down on this also whereby, in cases of disputes about customs duty leviable on any commercial cargo, the goods would be released on provisional basis pending investigation and adjudication. May be next time around, another assessee gains from the present appellant rsquo s misfortune and a provisional release is allowed to save on demurrage.
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2003 (12) TMI 559 - CESTAT, NEW DELHI
Production capacity based duty - Annual capacity of production - Interest and penalty ... ... ... ... ..... quent to the passing of the original order of determination of annual capacity by the Commissioner in November, 1997. We are informed by the representative of both sides that differential duty amount from December, 1997 works out to Rs. 2,83,734/-. This duty demand is confirmed. 6. emsp Under compounded levy rules, any change in the machinery which affects the annual capacity of production of the re-rolling mill is to be made only after prior approval of the Central Excise authority. Appellant has not taken that approval. They have not even informed the Central Excise authority. Deliberate evasion of duty is, thus clear. Therefore, imposition of penalty was quite justified. However, taking into account the revised duty amount involved, we reduce the penalty to Rs. 1 lakh (rupees one lakh only). We also confirm the demand for interest. Thus, subject to the above mentioned changes in duty amount and penalty, the impugned order is confirmed and the appeal is ordered accordingly.
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2003 (12) TMI 558 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Customs House Agent - Licence ... ... ... ... ..... er alia that the Director of the CHA had left blank shipping bills signed by him in his office which were mis-used by his employees and also for the reason that he did not obtain proper authorisation from the exporter M/s. Laxmi Steel Forgings. 3. emsp On a careful consideration of the rival submission, we are of the view no prima facie case has been made out for exercise of the inherent power of stay, in view of the fact that the adequacy or otherwise of the material available on record on the basis of which contravention of certain Regulations has been alleged and found, cannot be considered at this stage but only when the appeal is taken up for final hearing. We, therefore, dismiss the stay application.
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2003 (12) TMI 557 - CESTAT, KOLKATA
Cenvat/Modvat - HDPE Pipes ... ... ... ... ..... itation and is time barred. Moreover, all the transactions were genuine and not fictitious and Modvat credit has been taken on the quantity of inputs purchased by them and received in the factory. We, therefore, allow the appeals with consequential relief, if any, by setting aside the impugned order. Ordered accordingly. rdquo 6. emsp The above order was subsequently followed by the Tribunal in the case of M/s. Brijmohan Sheokishan and Others v. C.C.Ex., Kolkata, 2003 (160) E.L.T. 188 wherein the detailed submissions made by the appellants and the Revenue have been noted and after following the earlier order, the impugned orders were set aside. 7. emsp After carefully considering the submissions made from both the sides, we find that the issue is covered by the earlier decision of the Tribunal as reproduced above. As such, by following the same, we set aside the impugned order and allow all the three appeals filed by the appellants. MA and stay petitions also get disposed of.
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2003 (12) TMI 556 - CESTAT, MUMBAI
Appeal - Show cause notice - Scope of ... ... ... ... ..... imported from or through a person other than the manufacturer or producer, as considered necessary by the proper officer for determination of the value of imported goods under these rules. rdquo If the department was of the view that any or all of the conditions set out in the proviso to Rule 4(2) of the Valuation Rules were infringed by the importers, it was open to the Customs authorities to test the transaction value against the stipulation contained in the proviso. However, the transaction value in the present case was not sought to be tested against the provisions of Rule 4(2) proviso by the notice issued to the importers and the adjudication thereof. We, therefore, agree with the appellants that a new case is sought to be made out beyond the scope of the show cause notice by the Commissioner (Appeals). We, therefore, hold that the Commissioner (Appeals) ought to have directed acceptance of the declared value. 6. emsp In the result, both the appeals are allowed as above.
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2003 (12) TMI 555 - CESTAT, NEW DELHI
Clandestine manufacture and removal - Evidence - Legal proof - Demand ... ... ... ... ..... rd to depose that the goods were actually manufactured by the firm JEW but were supplied under the invoices of LEW. 11. emsp There is no evidence on record to prove that the firm LEW was a dummy firm flouted by the firm JEW and there was any flow back of money from one firm to another. The central excise registration of the firm LEW had never been revoked at any time during the period in dispute for having become non-existent. 12. emsp It is well settled that conjuctures and surmises cannot take place of legal proof. The allegations of clandestine manufacture and removal of the goods have to be established by the department by cogent and convincing evidence. The duty demand on such allegations cannot be based on assumptions and presumptions drawn from stray facts and circumstances. 13. emsp Consequently, the impugned order of the Adjudicating Authority is set aside in toto. The appeals of the appellants are allowed with consequential relief, if any, permissible under the law.
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2003 (12) TMI 554 - CESTAT, KOLKATA
Reference to High Court ... ... ... ... ..... e Explanation has not altered the substantive Part of the Scheme of the input relief but is only of clarificatory nature. Hence the proforma credit would be available even in respect of those cases where the material or component parts manufactured in the factory of manufacturer were received prior to coming into force of the Notification No. 118/80, dated 19-7-1980. This notification has, thus, retrospective effect. rdquo It is clear from the above that the Revenue itself considered the Notification to be retrospective in nature. As per the Hon rsquo ble Supreme Court rsquo s decision in the case of Collector of Central Excise, Bombay v. Kores (India) Limited reported in 1997 (89) E.L.T. 441 (S.C.), it is held that Tariff Advice or Trade Notice issued by Board is binding and the Revenue rsquo s appeals contrary to such Trade Notices have been dismissed. As such, we are of the view that there are no merits in the Reference Application filed by the Revenue and reject the same.
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2003 (12) TMI 553 - CESTAT, NEW DELHI
Appeal to Commissioner (Appeals) - Modifications of stay order ... ... ... ... ..... for classification of the product that the product catalogue revealed that the impugned product is nothing but a shovel loader classifiable under Heading 84.29 of the Schedule to the Central Excise Tariff Act that this fact was suppressed from the Department and as such larger period of limitation is invocable. 4. emsp We have considered the submissions of both the sides. The Commissioner (Appeals) has neither heard the Applicants while rejecting their Misc. Application for modification of the Stay Order passed by him nor before dismissing their appeals. We, therefore, after staying the recovery of entire duty and penalty, set aside the impugned order and remand both the appeals to the Commissioner (Appeals) who would first of all hear their Application for modification of the Stay Order with special reference to the aspect of demand being time bar and then pass the speaking Order thereon. Subsequently the Commissioner (Appeals) will decide the appeals in accordance with law.
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2003 (12) TMI 552 - CESTAT, NEW DELHI
Cenvat/Modvat - Modvat on inputs ... ... ... ... ..... tain both saturated and unsaturated hydrocarbons (in solid form) obtained from petroleum. Light Liquid Paraffin contains only saturated hydrocarbons (in liquid form) obtained from petroleum. On account of this difference, there are bound to be chemical differences also between paraffin wax and light liquid paraffin. The two substances cannot be treated as one and the same. It is also pertinent to note that the classification of light liquid paraffin mentioned in the suppliers rsquo invoices is not disputed by the Revenue. The Revenue has no case that goods falling under sub-heading 2710.90 of the CET Schedule would attract the provisions of Notification No. 14/97-C.E. (N.T.). In the result, the case of the department that Modvat credit on light liquid paraffin was admissible only to the extent of 10 ad valorem for the relevant period under Notification No. 5/94 as amended by Notification No. 14/97 cannot be sustained. The impugned order is set aside and the appeal is allowed.
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2003 (12) TMI 551 - CESTAT, MUMBAI
Cenvat/Modvat - Job work - Deemed credit ... ... ... ... ..... fact. 3. emsp The departmental representative seeks to distinguish the Tribunal rsquo s decision. 4. emsp In that decision, the Tribunal has held that the condition contained in Paragraph 5 of the notification is procedural and its non-compliance in a case where the appellant before it availed credit on goods that it manufactured and captively consumed was condonable. No doubt, the decision deals with a case where the assessee took credit on input that it captively consumed. However, in its decision the Tribunal, after considering various judgments of the Supreme Court specifically construed the notification in such a manner as to lead to justice and avoid hardship. Judicial discipline requires to me to abide by the ratio of this decision. I do not find that it only applies, as the departmental representative contends, to a case of captive consumption. It will, therefore, follow that the appellant was entitled to take credit. 5. emsp Appeals allowed. Impugned order set aside.
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2003 (12) TMI 550 - CESTAT, MUMBAI
Cenvat/Modvat on capital goods - Weighing instrument ... ... ... ... ..... It is clear now that, basic challenge to the appellate order was on the ground that the judgment of Jawahar Mills Ltd. case was under challenge before Supreme Court. The Supreme Court vide their decision reported in 2001 (132) E.L.T. 3 (S.C.) has clarified the scope of capital goods prior to the introduction of new definition. The dispute pertains to the period discussed in the Supreme Court judgment. 6. emsp Accordingly, the order of the lower authorities is required to be set aside and the matter is required to be referred to the adjudicating authority for deciding the eligibility in the light of the Jawahar Mills case (supra). 7. emsp Revenue appeal is accordingly allowed, by way of de novo remand to the adjudicating authority. Consequently the orders of the lower authorities are set aside. The Assistant Commissioner/Deputy Commissioner concerned, is directed to pass fresh orders within 3 months from the date of this order after following the principles of natural justice.
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2003 (12) TMI 549 - CESTAT, MUMBAI
Appeal - Limitation - Delay of 316 days in filing ... ... ... ... ..... ceedings of the Code of Civil Procedure would apply. It is also not possible to say by any one, with reasonable knowledge of law, to come to this conclusion of this section. It is also to be noted that none of the application made to the Commissioner refers to any such provision. It is well settled that review under the Code of Civil Procedure is limited to, for example, such cases of error apparent from the record. Review proceedings are not by way of appeal. It is not possible for us to come to the conclusion that the applicant purportedly came to the conclusion. The appellant is a large organisation with sufficient access to expert legal advice. Hearing before the Commissioner was attended by the Assistant General Manager (Legal). In these circumstances, we do not find any ground to say that the appellant was prevented by sufficient cause in filing the appeal. 5. emsp The application is, therefore, dismissed and consequently the appeal is dismissed as barred by limitation.
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2003 (12) TMI 548 - CESTAT, MUMBAI
... ...
... ... ..... ot produce invoices of purchase and therefore dismissed the appeal except for some reduction in the duty demanded. Hence this appeal. 2. emsp The notice to show cause issued to the appellant does not cite any evidence to substantiate the claim of manufacture by the appellant. The statement of Anil Joglekar on behalf of his wife Anuja Joglekar, who was a partner of Compu Shop. The notice itself does not contain a word to say or justify an inference that any manufacture whatsoever took place. It was the appellant rsquo s contention that it was trading in computers. The onus, which was clearly upon the department to show that any manufacture took place, has not been discharged. The Commissioner rsquo s view that it was up to the appellant to prove that it has not manufactured any goods is clearly not acceptable. In the total absence of evidence that the appellant manufactured computers, the department rsquo s case will not stand. 3. emsp Appeal allowed. Impugned order set aside.
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2003 (12) TMI 547 - CESTAT, MUMBAI
Cenvat/Modvat - Common inputs ... ... ... ... ..... the availment of credit with reference to the inputs used in the manufacture of duty free finished goods. The appellants assert that, though the common inputs are involved, the finished goods under clearance for which duty has been demanded, have been manufactured from inputs on which no credit has been taken. In this case, the evidence furnished by the appellants regarding the use of the inputs without taking credit thereon has not been assailed. Since the credit cannot be denied in cases where the accounts indicate that the credit has not been taken on the inputs used in the duty free finished goods, the amount of duty demanded and the penalty imposed in the impugned order cannot be sustained. The Board rsquo s Circular No. 591/28/2001-CX., dated 16-10-2001 and the decision of the Tribunal in the case of Rochees Watches Ltd. v. CC, Jaipur - 2003 (152) E.L.T. 420 are referred. 3. emsp The appeal is accordingly allowed and the impugned order of the lower authority set aside.
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2003 (12) TMI 546 - CESTAT, MUMBAI
Cenvat/Modvat ... ... ... ... ..... clearance documents and in the absence of any such clearance documents, it cannot be alleged that the credit has been utilised. The department has not been able to state any other reason for refund not being available except the reason that the assessee rsquo s record mentions that the amount of Rs. 9,208/ - in the register as having been utilised. Therefore the findings on this count also cannot be sustained. 8. emsp So far as the amount of Rs. 1,074/ - is concerned, the learned Counsel did not press for this claim during the hearing and therefore, the rejection of this amount is upheld. 9. emsp Accordingly the appeal of the appellants is partly allowed, so far as the claims in respect of AR-4 No. 63/98-99, dated 15-10-1988 and AR-4 No. 67/98-99, dated 28-10-1998 are concerned, while that in respect of AR-4 No. 56/98-99, dated 3-10-1998 is rejected. 10. emsp The orders of the lower authorities are modified to the extent above and the appeal partly allowed in the above terms.
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2003 (12) TMI 545 - CESTAT, CHENNAI
Confiscation of conveyance ... ... ... ... ..... ch the vessel in question remains confiscated took place in 2001, much after the amendment of Section in 1988. Finding in the impugned order (para 71), makes it clear that there is no evidence that the smuggling of gold in question, had taken place with the knowledge of the owner of the vessel, his agent or master of the vessel. Therefore, I am in agreement with ld. Member (J) that the confiscation ordered under the impugned order is contrary to the provisions in Section 115(2). The finding is, therefore, not sustainable and is required to be set aside and the appeal allowed with consequential relief, if any. 19. emsp Having recorded my opinion on the reference as above, the appeal is returned to the original Bench for passing final order. Sd/- (C.N.B. Nair) Member (J) Dated 17-2-2004 MAJORITY ORDER In terms of majority order, the impugned order is set aside and appeal is allowed with consequential relief, if any. Sd/- (Jeet Ram Kait) Member (T) Sd/- (S.L. Peeran) Member (J)
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