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Case Laws
Showing 161 to 180 of 7263 Records
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2006 (12) TMI 420 - CESTAT, NEW DELHI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... d that in this case, the duty paying documents are not in the name of appellant and failed to produce any document indicating that the goods were supplied to them. As such, I do not find any force in the submissions of the learned Advocate. The case laws relied upon by the learned Advocate are inapplicable in the present case. In the case of M/s. SAIL v. CCE, Raipur, Order dated 24-7-2006, the Tribunal allowed the Modvat credit though duty paying documents were not in the name of the appellants. But, they produced evidences in the form of certificate issued by the supplier of the inputs countersigned by the Range Officer to indicate that the materials are in fact consigned to the appellants. In this case, the appellants failed to produce any evidence. As such, the demand of duty is upheld. However, taking into consideration of the facts and circumstances of the case, I set aside the penalty. 7. emsp The appeal stands disposed of in the above terms. (Pronounced in open court).
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2006 (12) TMI 419 - CESTAT, KOLKATA
Natural justice - Speaking order ... ... ... ... ..... sustain the penalty by dismissing the appeal of the assessee before him, appears to perpetuate the illegality without passing a reasoned and speaking order. In the circumstances, it would be proper on the part of the learned Commissioner (Appeals) to revise the Order, for which the matter has to be sent back to him, who shall thoroughly examine as to whether there was any penalty paid by the assessee, and if so, he should not fail to mention that in the Revised Order to be passed by him. However, if he comes to the conclusion that no penalty was imposable on the assessee, mere payment of a token penalty by the assessee does not vest jurisdiction with the Authority to legalise illegality. He should accordingly revise his Order and pass a speaking order in accordance with law. Accordingly, the first appellate Order is set aside to carry out the aforesaid directions. The appeal is remanded as such with modification of the Order-in-Appeal, as above. (Pronounced in the open Court)
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2006 (12) TMI 418 - CESTAT, MUMBAI
Refund - Limitation - Interpretation of statutes - Exemption notification ... ... ... ... ..... fund claim under the aforesaid Notification subject to fulfillment of the conditions mentioned therein, the Appellants can not avoid the compliance of the Notification. Since the condition 43 of the said Notification specifically provided filing of the refund claim before expiry of six months from the date of payment of duty, the Appellants have no option but to comply with the above conditions. He submitted that both the Lower Authorities have correctly passed the order and the same do not require any interference. 5. emsp After hearing both the sides, perusal of the records and case laws, I find that the Appellants have availed the benefit under Notification 6/2000 and have not complied with the condition mentioned therein. Therefore, once they have availed the benefit under the notification they are bound by the condition laid therein the said notification. Hence relying on the Apex Court decision, I do not find any merits in this appeal. The same is, therefore, dismissed.
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2006 (12) TMI 417 - CESTAT, MUMBAI
... ...
... ... ..... ntion that in such a scenario, confirmation of interest or imposition of penalty was not called for. As regards the confirmation of interest confirmed under Section 11AA, I find that the said provision was introduced with effect from 28-5-95 and cannot be held to be retrospective in nature. As such, confirmation of interest under the said provision was not called for. As regards penalty, I find that it is a bona fide case of finalization of assessable value and the appellants had paid the differential duty on their own. Thus no penalty is called for in these circumstances. Accordingly, I set aside the confirmation of interest and penalty against the appellants and allow the appeal. (Dictated in Court)
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2006 (12) TMI 416 - CESTAT, MUMBAI
Cenvat/Modvat - Inputs ... ... ... ... ..... peals) Modvat credit is admissible when the same is used in or in relation to the manufacture of the final product. Use of steam in canteen cannot, by any stretch of imagination, be said to have been used in or in relation to the manufacture of final products. As such, I confirm the demand of duty of Rs. 951/- against the appellants. However, I do not find any justification for imposing penalty of Rs. 1,000/-, the same is set aside. The appeal is disposed of in above terms. (Dictated in Court)
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2006 (12) TMI 415 - CESTAT, AHMEDABAD
Stay/Dispensation of pre-deposit - Demand and penalty - Valuation ... ... ... ... ..... Ordered accordingly. rdquo It is noticed that if the Public Sector Undertakings (PSUs) who are on the same footing when they clear the goods i.e. SKO and LPG as a refinery to another public sector undertaking as a marketing concern the mechanism of payment is the same as is being adopted by the current applicants. 7. emsp We find that the current applicants cannot be put in a disadvantageous position on the same issue, in which public sector undertaking are not issued any demand of duty. 8. emsp Accordingly, we find that the applicants/appellants have made out prima facie case for complete waiver of pre-deposit of the amount of duty and penalties involved. Pre-deposit of the amount of duty and penalty is waived and recovery thereof stayed till the disposal of the appeals. 9. emsp Considering the amount involved in these cases and on the oral submission of the counsel, the matter is listed for regular hearing on 28th December, 2006. (Dictated and pronounced in the open Court)
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2006 (12) TMI 414 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Demand and interest - Appeal - Limitation - Delay of 42 days in filing
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2006 (12) TMI 413 - CESTAT, BANGALORE
Production capacity based duty ... ... ... ... ..... with a question of show cause notice having been issued before the assessments were finalized. Hence, the issue of show cause notice was held to be not sustainable in view of deletion of Section 3A of the CE Act. 3. emsp On a careful consideration, I notice that all these pleas have been dealt with in the cited cases. It has been clearly laid down that in view of the deletion of Section 3A without a saving clause, the demands can not be confirmed in all the pending cases. The appellants were at liberty to file appeal against such confirmation of demands. Their right of appeal had not been taken away by amendment to the relevant sections of the Central Excise Act. Therefore, the pending appeals could be heard but demands cannot be confirmed as there was no saving clause to Section 3A of the Act which was deleted by Finance Act 2001. Respectively following the ratio of cited judgments, the impugned order was set aside and appeals allowed. (Pronounced and dictated in open court)
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2006 (12) TMI 412 - CESTAT, NEW DELHI
Cenvat/Modvat ... ... ... ... ..... he division bench of this Tribunal in Zenith Die Cast Pvt. Ltd. (supra) was concerned only with the question whether a job worker being manufacturer was entitled to take Modvat credit in respect of furnace oil used in the manufacture of finished products, in the context of provisions of Rule 57A, and in paragraph 5 of the judgment, by observing that it is well settled position that a job worker is also a manufacturer, it was held that he was entitled to take Modvat credit on furnace oil used. Rule 6 of the Cenvat Credit Rules, 2002, however, differently worded. 5. emsp Therefore, the question whether the division bench decision in Zenith Die Cast Pvt. Ltd. (supra) will apply in the context of Rule 6 and on the facts of the present case, deserves to be decided by a division bench. The matter may, therefore, be placed before the President for constituting a larger bench for considering the said issue and for a decision on this appeal. (Dictated and pronounced in the open Court)
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2006 (12) TMI 411 - CESTAT, AHMEDABAD
Refund - IC engines used captively for manufacture of pump sets ... ... ... ... ..... y themselves were holding a view that the engines were exempted, whereas on the other hand, the appellants were contending that the same were dutiable. As such, having accepted the appellant s contention, it cannot be said that the entire amount of 8 debited by them, has to be refunded. It is the amount extra paid by them than the duty required to be paid, which only is to be refunded to them. This issue was not examined by the earlier Bench from this angle. Inasmuch as, we are not taking a view different than the one arrived at by the Tribunal in the appellant s earlier case on the legal issue, we do not think it to be a case to be referred to the Larger Bench. 7. emsp In view of the above, we remand the matter to the original adjudicating authority for quantification of the amount required to be refunded to the appellant, in the light of the observations made by us in the proceedings paragraph. The appeal is disposed of in the above terms. (Pronounced in Court on 7-12-2006)
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2006 (12) TMI 410 - CESTAT, NEW DELHI
Cenvat/Modvat - Capital goods ... ... ... ... ..... gislative intent, because plant was capable of a very wide meaning. The decisions in Simbhaoli Sugar Mills Ltd. and Malvika Steel Ltd., which were rendered in the context of the definition of ldquo capital goods rdquo , in explanation to Rule 57Q(1) which included plant and the components, spares and accessories of plant, cannot apply, in respect of the aforesaid period of April 2003 to October 2003, in relation to which the definition of capital goods, as provided in Rule 2(b) of the CENVAT Credit Rules, 2002 would alone apply. Since plant and components or parts of plants have been excluded under Rule 2(b) of the CENVAT Credit Rules, the decisions in Simbhaoli Sugar Mills Ltd. and Malvika Steel Ltd. have been erroneously relied on by the Commissioner (Appeals). 9. emsp In the above view of the matter, the impugned order made by the Commissioner (Appeals) cannot be sustained and it is hereby set aside and the order in original is restored. This appeal is accordingly allowed.
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2006 (12) TMI 409 - CESTAT, NEW DELHI
Refund claim - Unjust enrichment ... ... ... ... ..... ns of Tribunal, including Gwalior Oil Mills, on which reliance has been placed, the impugned order of the Commissioner (Appeals) applying the presumption under Section 12B against the assessee is required to be set-aside. However, the matter is required to be examined afresh without the aid of such presumption, under the provisions of Section 11B of the Act, in the light of the above. The adjudicating authority should, therefore, examine whether the requirement of Section 11B that, ldquo hellip ..the incidence of such duty had not been passed on by him to any other person rdquo , is satisfied or not without the aid of any presumption under Section 12B of the Central Excise Act. The impugned order is, therefore, set aside and the matter is remanded to the adjudicating authority for a fresh decision in accordance with the law and in the light of the observations made in this judgment The appeal is accordingly allowed by way of remand. (Pronounced and dictated in the open Court)
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2006 (12) TMI 408 - CESTAT, MUMBAI
Cenvat/Modvat - Duty paying documents - Penalty imposed - HELD THAT:- As a manufacturer who has taken the credit he is required to know the supplier of raw materials and not merely their merchant manufacturer. It is like a buyer of stolen goods cannot claim ownership of the goods even if he has purchased without knowledge. If he has purchased the stolen goods with the knowledge that they are stolen, then he is liable, in addition, to penal action. Anyway, the appellant, in this case, has taken an undertaking from the merchant manufacturer to compensate him, in the event of credit being found not eligible. Whether this was done out of abundant precaution or out of knowledge is not clear. In this regard benefit of doubt naturally goes to the appellant manufacturer.
Thus, hold that - (a) the invoices raised by M/s. Muskan Prints is not valid for the purpose of taking credit by the appellant;
(b) the appellant is required to pay the duty and interest as demanded by the original authority and as upheld by the Commissioner (Appeals);
(c) the penalty is not sustainable.
The appeal is disposed off on the above terms.
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2006 (12) TMI 407 - CESTAT, MUMBAI
Penalty - Cenvat/Modvat - Duty paying Documents - Validity of ... ... ... ... ..... nd of demand from M/s. Shiv Enterprises, the dealer is not permissible. 10. emsp In the light of the above, I hold that - (a) The invoices raised by M/s. Ankit Textiles is not valid for the purpose of taking credit by the appellant. (b) The appellant having no right to take credit has no right to pass on the credit. Therefore, the invoices issued by the appellant is not valid for the purpose of taking credit by the subsequent buyer. (c) The department is directed to identify and take action, if not already done, to recover the credit from the manufacturer/producer who has taken and availed the credit on the basis of invoices issued by M/s. Shiv Enterprises. In addition, the department may also consider causing appropriate action under other laws in force. (d) The penalty of Rs. 2 lakhs (Rs. Two lakhs only) on M/s. Shiv Enterprises as upheld by Commissioner is fully justified and hence sustained. 11. emsp The appeal is disposed off on the above terms. (Pronounced on 1-12-2006)
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2006 (12) TMI 406 - CESTAT, MUMBAI
Customs House Agent’s Licence - Revocation of CHA licence - HELD THAT:- We find that it is an admitted fact that the appellant has allowed Shri Vipual Shah to carry on business on monthly rental basis or a consignment basis which has resulted in fraudulent exports by his client whose credentials were not looked in to by the CHA. This cannot be considered as a mere commission agent being employed by the CHA. In fact no authorization from the customer in favour of the CHA is on record and the copy produced by the appellant is without any date and there is no evidence that it was procured before taking up the business of the exporters in question. On the other hand the appellants contend that the same was recovered by the DRI but could not show any panchnama to that effect.
Thus, we find that the licence has been suspended for the last two years and has now been revoked permanently. We consider it too harsh a punishment as it deprive the CHA of his livelihood. We consider that revocation for a period of three years from the date of suspension of licence (i.e. 1-3-2004) would be sufficient and on expiry of three years licence may be restored on taking fresh security deposit as we confirm the order of the Commissioner in forfeiting the security deposited by the appellant earlier.
Appeal is partly allowed as per above terms.
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2006 (12) TMI 405 - ITAT BANGALORE
Eligible for deduction u/s 80JJAA - Employee employed not in a supervisory capacity and getting a salary of more than Rs. 1,600 per month - Meaning and scope of "Workman" section 2(s) of the Industrial Disputes Act, 1947 - HELD THAT:- As stated earlier the assessee had filed the details of the software engineers employed during the years under consideration containing the names of the employees, designation and date of joining. Further, in the same list the details of total number of employees joined during both the assessment years, number of employees without supervisory roles, workmen joined, number of supervisors joined and workmen joined and relieved during the years under consideration. A cursory perusal of this list shows that the assessee had claimed deduction in respect of employees, who had joined as engineers in their respective field such as systems engineer, test engineer, software design engineer, IC design engineer, lead engineer etc. A cursory perusal of those lists establishes that the assessee had claimed deduction in respect of the engineers employed not in the category of supervisory control.
Further, from the order of the CIT(A), it is seen that he had taken note of the notification issued by the Government of Karnataka and concluded that as per the notification issued, the assessee company engaged in the development of software is covered by the Industrial Disputes Act, 1947.
Further it is not the case of the revenue that the assessee did not fulfil the conditions extracted elsewhere in this order. Considering all those factual matters we do not find any infirmity in the order of CIT(A) according relief to the assessee. In fact he had clarified the relevant portions related to Industrial Disputes Act, 1947 and Income-tax Act while granting relief to the asssessee which are extracted at pp. 5 and 6 of this order.
After carefully considering the same, we are inclined to accept the reasons shown by the learned CIT(A). The learned CIT-Departmental Representative could not assail the finding reached by the learned CIT(A) by bringing in any valid materials. The order of the CIT(A) is confirmed. It is ordered accordingly.
In the result the appeals filed by the revenue are dismissed.
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2006 (12) TMI 404 - PUNJAB & HARYANA HIGH COURT
Seizure of bank account - Drawback fraud ... ... ... ... ..... legal export incentives of about Rs. 7 crores. 10. emsp Having regard to the fact that an order has been passed indicating that according to the respondents, the amount in question was liable to confiscation and correctness of the said order has not been put into issue on merits except on the ground of violation of order Annexure P.1. We are unable to hold that the impugned order, Annexure P.2 is liable to be set aside for violation of order of this Court, Annexure P. 1, which, as already observed, was to operate for release of bank account ldquo unless by then any other appropriate order challenging seizure of the bank account is passed rdquo . Such an order having been passed, contention that there was violation of order of this Court dated 7-9-2006 Annexure P. 1 cannot be upheld. We make it clear that we have not gone into validity of order Annexure P.2 on merits lest remedies of the petitioners against such an order are prejudiced. 11. emsp The writ petition is dismissed.
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2006 (12) TMI 403 - AUTHORITY FOR ADVANCE RULINGS, NEW DELHI
Whether the service tax liability can be imposed upon the service availer like us who is engaged in the manufacturing and Exporting and is availing Services like transportation of goods through roads from the transport service provider during the course of our trade and commerce of export?
Whether we are entitled for exemption/Waiver/tax holiday from the Service Tax, as we are exclusively involved in the 100% export?
Whether we are entitled for the benefits of the provisions of Rule 3(1) (iii) of Export of Service Rules, 2005 as transportation services are provided to us in relation to our business or commerce and the ultimate recipient of those services are located outside India?
Is it correct to hold that all the activity, incidental and ancillary, facilitating the export shall also fall within the ambit of export and enjoy the same benefits as are available to the Export?
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2006 (12) TMI 402 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Exemption ... ... ... ... ..... he removal of doubt rdquo and clarified the text of the entry against Sl. No. 44 of the Notification No. 25/99-Cus which continued unchanged even after issue of the Notification No. 28/03-Cus. dated 1-3-03. The relevant entry at Sl. No. 44 of list lsquo A rsquo of in the Notification No. 25/99 reads as follows rdquo Plain plastic films (other than Polystyrene film) of thickness 12 microns or below Metallised Plastic films of thickness 12 microns or below rdquo The clarification apparently is effective from the date of issue of the Notification No. 25/99-Cus. and the effect of the explanation therefore is apparently that the impugned goods were eligible for the exemption allowed at the time of their import. In the circumstances, I am convinced that the appellants have made out a prima facie case against the demand. Accordingly, there will be waiver of pre-deposit and stay of recovery of the demand during the pendency of the appeal. (Order dictated and pronounced in open Court)
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2006 (12) TMI 401 - COMMISSIONER OF CENTRAL EXCISE (APPEALS), MUMBAI-I
Rebate - Export of inputs ... ... ... ... ..... or payment of any duty on any final product and the said debit/reversal acquires the nature of duty for which the credit was reversed/debited. Moreover, the appellants have correctly relied upon the Tribunal rsquo s judgment in the case of Grasim Industries Ltd., reported at 2003 (155) E.L.T. 200 (Tri.) wherein Tribunal held that, what is being paid by a manufacturer at the time of removal of inputs/capital goods as such is duty. 4. emsp I further observe that, the lower authority has not disputed actual export of goods covered vide above referred ARE 1s. The payment of duty on exported goods is not in dispute as discussed hereinabove. As such, there was substantial compliance of the provisions of Rule 18 and hence, the appellants were entitled for rebate. In these circumstances, the impugned order rejecting rebate claims cannot be sustained and it has to be set aside. 5. emsp In view of the above, I set aside the impugned order and allow the appeal with consequential relief.
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