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Case Laws
Showing 101 to 120 of 520 Records
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2002 (11) TMI 712 - CEGAT, NEW DELHI
Appeal by Department - Authorisation ... ... ... ... ..... emsp On the other hand, the JDR has not been able to refute both the grounds raised by the Counsel for the non-maintability of the appeal. 4. emsp I have also perused the record. The appeal papers only bear attestation of the Superintendent and not of any officer. The grounds of appeal also bears his attestation with stamp and not signatures of Dheeraj Rastogi, Deputy Commissioner (Review) whose name appears under the prayer and the verification appended to the grounds of appeal. There is also nothing on the record to suggest if the Deputy Commissioner, Shri Dheeraj Rastogi was authorised by any competent authority to file the appeal. No authorisation letter of the competent authority had been appended with the appeal. Therefore, the appeal of the Revenue on the face of it is not legally maintainable. Even the JDR has not been able to rebut all these defected in the appeal as pointed out by the Counsel. Consequently, the appeal of the Revenue is dismissed as not maintainable.
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2002 (11) TMI 711 - CEGAT, MUMBAI
Valuation - Quantity discount ... ... ... ... ..... er these circumstances, goods are sold to the importer at a lower rate. This contention was not accepted by the adjudicating authorities for the reason that the quantity discount is not based on the imports made exclusively to India. 3. emsp Commissioner (Appeals) was inclined to accept the contention raised by the importer. He found that the supplier M/s. Morton International Ltd., UK has fixed prices for M/s. Forsoc Group worldwide being large purchaser of the material. He was therefore inclined to accept the invoice price. 4. emsp We do not find any merit in the contention raised by the Revenue that the discount should be based on Countrywise quantity. Commercial transaction is between the two parties. It is not relevant whether the supply is to different countries. Under these circumstances, quantitywise discount granted taking into consideration the supply globally cannot be rejected. We, therefore, affirm the finding of the Commissioner (Appeals) and dismiss the appeal.
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2002 (11) TMI 710 - CEGAT, NEW DELHI
Accountal of goods - Goods found short during stock verification ... ... ... ... ..... Appeals) had confirmed the duty demand, but reduced penalty to Rs. 25,000/-. 3. emsp I have heard both the sides. The perusal of the record shows that Shri A. Bose, Commercial Manager of the appellants admitted the shortage and even voluntarily debited the duty in RG 23A Part II register. The appellants no doubt took the plea that his statement was recorded under duress. But in my view, the same has been rightly rejected by the authorities below. The admission on the part of Shri A. Bose was enough for the authorities below to confirm the duty demand on account of shortage of the goods. 4. emsp The duty liability has not been even contested before me on behalf of the appellants by the Counsel. That being so, the penalty of Rs. 25,000/- imposed on the appellants cannot be said unjustifiable under Rule 173Q. I do not find any reasons to interfere with the impugned order of the Commissioner (Appeals) and as such, the same is upheld. The appeal of the appellants stands dismissed.
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2002 (11) TMI 709 - CEGAT, BANGALORE
Valuation - Contract Price Variation - Tax planning - Contract Price Variation ... ... ... ... ..... appellants, buyer and supplier of power in respect of supply of power and if the appellants are benefited and additional consideration has been passed on though not directly but indirectly from the buyer to the assessee same is to be added to that extent as per Rule 5 of the Valuation Rules. We are of the view that this issue also requires to be re-examined. Whether any additional consideration has been flown, even indirectly from the buyer to the assessee same is to be added to that extent as per Rule 5 of the Valuation Rules. 21. emsp It was also argued on behalf of the appellants that substantial portion of the demand was barred by time. Since we are remanding the matter to the concerned adjudicating authority, all the issues including limitation can be looked into by the adjudicating authority and to pass an appropriate order in accordance with law on providing an opportunity to the party. Thus these appeals are allowed by way of remand. Sd/- (G.A. Brahma Deva) Member (J)
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2002 (11) TMI 708 - CEGAT, NEW DELHI
Cenvat/Modvat - Modvat on inputs - Duty paying documents ... ... ... ... ..... removal and amount of duty was not written in words. The Appellants have contended that these are procedural requirement on the basis of which substantial right of benefit of Modvat Credit cannot be denied. Reliance has been placed on the decision in the case of CCE., Mumbai v. Okasa Ltd., 2001 (127) E.L.T. 184 (Tribunal). 3. emsp I have considered the submissions. I observe that under the Central Excise Rules there was no requirement of taking Credit on any particular copy of invoice before 19-1-95 when the Rule 57GG was amended providing for availment of Credit on the strength of duplicate copy of invoice. As in the present matter the invoice pertains to the period October, and November, 1994 the same were valid documents for the purpose of taking Modvat Credit. Further, the other particulars missing in the invoice were of the nature of curable defects on account of which Modvat Credit need not be disallowed. I, therefore, set aside the impugned Order and allow the appeal.
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2002 (11) TMI 707 - CEGAT, MUMBAI
Cenvat/Modvat ... ... ... ... ..... that their not having taken the credit of the duty paid on the yarn as permitted under Rules 57A and 57G, there was no requirement for them to follow the route prescribed in Rule 57F(4) of the Rules. 3. emsp I have seen the relevant Rules and the interim order. The reasons for the peculiar stand taken by the assessees are not clear on the face of the record. The claim that the assessees were not required to go through the route of Rule 57F(4), however, has merit in view of the fact that the credit of the duty paid on the yarn was not taken. This statement, however, needs to be verified. If the assessees had not taken credit then the bar imposed under Rule 57F(4) would not operate and there would be no reason to disallow the recredit in spite of the marginal delay. 4. emsp For the limited purpose of verification of the aspect of not taking credit under rule 57A the proceedings are remanded to the Assistant Commissioner/Dy. Commissioner. 5. emsp The appeal is allowed by remand.
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2002 (11) TMI 706 - CEGAT, KOLKATA
Production capacity based duty - Annual capacity of production ... ... ... ... ..... has made the re-fixation effective from 12-10-99 when the joint verification was conducted on the ground that the appellants have not followed the conditions as contained in the Revenue rsquo s letter dated 6-5-99, when the permission was granted to them to effect reduction in pinion center distance - lsquo d rsquo . However, we find that the appellants have intimated the Revenue about the date of such reduction as also about the production having commenced with the changed parameters. As such, the Commissioner was not justified to make the refixation effective from the date of visit of the officers and not from the date of actual change in the parameters. 8. emsp In view of the foregoing, the Annual Production Capacity is required to be fixed by taking the lsquo d rsquo factor as 160 mm. and the same is required to be made effective from 1-6-99 i.e. the date of actual change in the parameters. Accordingly, we set aside the impugned Order and allow the appeal in above terms.
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2002 (11) TMI 705 - CEGAT, BANGALORE
Cenvat/Modvat - Deemed Credit ... ... ... ... ..... e is not permissible. (d) The District Industries Officer has clearly certified that the plant and machinery existing then cannot be used to manufacturing Zinc Oxide of Zinc Ash/Residue. The finding by the adjudicator as to how and why low contents could be used by the appellants is only has presumption. The order omits to answer the evidence provided by the industries Officers HSN defines ldquo Waste and Scrap of Zinc to be resultant waste out of working on material, etc. why the entity herein could not be so has not been arrived at. Investigation should have been done at suppliers end to establish the commercial understanding of the disputed product. Different percentages of Zinc content have been shown in test reports of other samples. Therefore we find no material to confirm the adjudicator rsquo s findings. (e) When we find no reason to deny the deemed credit, there can be no orders on penalty. 5. emsp In view of our findings the order is set aside and appeal is allowed.
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2002 (11) TMI 704 - CEGAT, BANGALORE
Export rejects - Dutiability - Interpretation of taxing statute - Export-Oriented Unit - Penalty
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2002 (11) TMI 703 - CEGAT, CHENNAI
Confiscation - Absolute confiscation - Conveyance ... ... ... ... ..... or de novo to consider the provisions cited by the appellants and also the Tribunal decisions. Ld. DR has no objection for remand of the matter. 4. emsp On a careful consideration, I notice that the appellants rsquo plea is that the mini lorry cannot be absolutely confiscated in view of their having interest therein and that the Registration being in their name is justified one. The matter is required to go back to the Commissioner of Customs and Central Excise, Trichy to reconsider the appellants rsquo prayer that the terms of the proviso to Section 115(2) read with Section 125 of the Customs Act and the decisions cited above, the mini lorry in question is required to be released on appropriate payment of fine. The Commissioner, after due consideration, shall release the vehicle on fixing appropriate fine after taking into consideration all the relevant factors and after granting hearing to the appellants. Thus, the appeal is remanded for de novo consideration on this point.
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2002 (11) TMI 702 - CEGAT, KOLKATA
Remand - Natural justice ... ... ... ... ..... Order. Learned Commissioner has not touched the points made in their submission on 17-11-2001. He, therefore, submitted that the Order should be set aside. 3. emsp Heard Shri T.K. Kar, learned S.D.R. for the Revenue. 4. emsp We have considered the submissions made by both sides and also considered the point raised by the appellants that the Order is a non-speaking Order and has been passed by the Commissioner very carelessly. He has, therefore, passed a cryptic Order. He has neither touched the Enquiry Officer rsquo s Report nor the submissions made by the appellants. We, therefore, remand the matter back to the original authority by setting aside the impugned Order and direct the original authority to pass a speaking Order within three months from the date of receipt of this Order. Learned Counsel shall be afforded a reasonable opportunity to be heard in person before passing of the de novo Order in the matter. Miscellaneous Application also gets disposed of in above terms.
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2002 (11) TMI 701 - CEGAT, , NEW DELHI
Production capacity based duty - Dismantling of Hot Air Stenter ... ... ... ... ..... ould like to restart production under the old schedule i.e. Section 3 of the Central Excise Act, 1944. No reply was received to this letter. In spite of repeated reminders requesting the Department to get the seal of the Hot Air Stenter opened, it was finally done only on 11-11-1999. In the meanwhile, the other portion of the stenter was already removed by the assessee. The Commissioner has found that all throughout the period of notice to show cause what remained in the factory was only a portion of the Hot Air Stenter which could not be taken out of the factory by the assessee since the Department failed to remove the seal on that portion. The above being the factual position the Commissioner was fully justified in holding that since only a portion of the Hot Air Stenter was remaining in the factory during the relevant period, Explanation-II cannot have any application to the facts of the case. We therefore affirm the order passed by the Commissioner and dismiss the appeal.
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2002 (11) TMI 700 - CEGAT, MUMBAI
Demand - Limitation ... ... ... ... ..... owever, the fact remains that the goods were given the benefit of the exemption by the assessing officers of the Bombay Customs House. The goods had already been subjected to chemical test on various occasions. The test report dated 16-8-1987 by the Chemical Examiner of the goods imported by the appellant indicates his opinion that the goods may be considered to be as unwrought. A further test of goods imported in 1993 also repeats this opinion. In other words, the consistent view taken by the Bombay Customs House that the powder was unalloyed and therefore entitled to the exemption. In the light of this view whether incorrect or not, it would not be possible to invoke the extended period. This was in fact the claim that the appellant made before the Commissioner in the reply to the notice. The Commissioner has not dealt with it. The demand is thus barred by limitation and duty could not have been demanded and penalty imposed. 4. emsp Appeal allowed. Impugned order set aside.
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2002 (11) TMI 699 - CEGAT, MUMBAI
Penalty - Short payment of duty based on annual capacity of production ... ... ... ... ..... 6ZQ as well as the Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 1998. While they provide for an assessee to make an application to the Commissioner for determination of the capacity and for the Commissioner to communicate the determination made by him, for payment of duty and for other matters incidental to or arising out of this. None of them prescribes procedure that is required to be followed by an assessee by the department pending the determination of such capacity. Simply, none of the Rules requires that any processor should, pending determination by the Commissioner of the capacity and therefore the duty payable on its own, cannot determine duty payable and pay that duty. In that situation, therefore, it cannot be said that the appellant short paid the duty that it was required to pay. Therefore there was no contravention of law by it. 5. emsp The appeal is accordingly allowed and the penalty imposed on the appellant is set aside.
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2002 (11) TMI 698 - CEGAT, MUMBAI
Exemption notification - Date and time of coming into effect - Penalty - Imposition of ... ... ... ... ..... t be unreasonable to expect an assessee to act in accordance with good conscience and where it has no case to pay the duty properly without waiting for formal adjudication proceedings. This however does not mean that every assessee has to give up its right to fight an issue to the end after all it is not only the assessee who fights the issue to the end. In any number of cases the department carries appeals right up to the Supreme Court even in cases where the order that is sought to be defended appears to be contrary to the settled law. What that we wish to emphasise is that it is not proper of the department to impose penalty solely because the appellant declined to comply with the officer rsquo s demand for depositing the duty. This is the reason that the Commissioner has ordered in his order. The show cause notice does not furnish any specific ground. In this situation, we are satisfied that the penalty was not called for. 5. emsp Appeal allowed. Impugned order set aside.
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2002 (11) TMI 697 - CEGAT, MUMBAI
SSI Exemption - Registration certificate ... ... ... ... ..... basis of provisional certificate has to be decided solely upon the fate of such a provisional certificate. We do not think the trade notice says, or intends to say, that even in a situation where the application for permanent registration is not accepted and the provisional registration is therefore terminated, the benefit of the exemption contained in the Notification 175/86 should be granted. Such a view would be totally contrary to the entire scheme to grant of various facilities including the exemption from excise duty to small-scale industrial undertaking. 5. emsp In the case before us since, despite sufficient time being granted, the respondent did not produce evidence of final small-scale registration to the departmental authorities and has not produced it before us now. We are hence of the view that the denial of the benefit by the Deputy Collector was in order. We therefore allow this appeal, set aside the impugned order and restore the order of the Deputy Collector.
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2002 (11) TMI 696 - CEGAT, KOLKATA
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... rt oriented unit is required to clear the goods by issuing AR IA in terms of Rule 100D. I have also examined the provisions of Rule 100D and l00E. Both prescribe for clearance of goods on an invoice. Rule 100E was subsequently introduced as a modvatable document vide Notification No. 3/96 w.e.f. 13-2-96. However, notification 15/94-C.E. (N.T.) issued under the provisions of Rule 57G prescribed an invoice issued by the manufacturer from his factory and containing all the relevant details, as modvatable documents. As such, I agree with the ld. Consultant that the commercial invoice or the AR IA issued by 100 export oriented unit containing all the relevant information can be treated as a modvatable document in terms of the above notification. For the said purposes, I set aside the impugned order and remand the matter to the Assistant Commissioner for examining the documents in question and then deciding the availability of Modvat credit. Appeal is thus allowed by way of remand.
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2002 (11) TMI 695 - CEGAT, NEW DELHI
Cenvat/Modvat - Demand - Penalty ... ... ... ... ..... indings of the Commissioner (Appeals), has no serious objection to a remand of the matter. 4. emsp As it has been shown by the appellants that the lower appellate authority has not even attempted to examine the certificates of the Central Excise Range Superintendent, Mandi Gobindgarh, produced by them at the hearing stage of their appeal, I think the matter requires to be remanded for fresh decision. I, accordingly, set aside the order of the Commissioner (Appeals) and allow the present appeal by way of remand. The Commissioner (Appeals) shall consider the Central Excise Range Superintendent rsquo s certificates relating to discharge of duty liability by M/s. Dhiman Industries for the relevant periods as also the final order No 718-722/2001, dated 27-8-2001 of this Tribunal and take a fresh decision on the question whether the deemed credit is admissible to the appellants or not. Needless to say that a reasonable opportunity of being heard should be granted to the appellants.
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2002 (11) TMI 694 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... appellant it is classifiable under sub-heading 7412.20. The Revenue would contend that they are to be classifiable under sub-heading 8415.00 as parts of air-conditioner. 2. emsp After hearing the learned Counsel as well as the learned DR we find that the appellant has made out a case in its favour both on merits as well as on the issue of limitation. We, therefore, waive the condition of pre-deposit.
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2002 (11) TMI 693 - CEGAT, CHENNAI
Appeal - Limitation ... ... ... ... ..... e delay of 47 days were condoned in the case of Sree Laxmi Steel and Re-Rolling Mills v. CCE, Hyderabad as reported in 2001 (138) E.L.T. 476 on the similar ground of sickness and hospitalization. This Bench in the case of Essenjay Marketing Pvt. Ltd. v. CC, Bangalore as reported in 1995 (78) E.L.T. 774 condoned the delay of 41 days on similar ground that the Director of the Company being confined to bed and his inability to give instructions to other persons to file the appeal. In view of large number of judgments accepting the reason of sickness as a ground for condoning the delay I am satisfied that the appellant had sufficient ground seeking for condonation of the delay. The Commissioner (Appeals) ought to have condoned the delay and heard the matter on merits. In view of the Bench accepting the grounds given by the appellant the impugned order is set aside and the matter remanded to Commissioner (Appeals) to decide the case on merits. Thus the appeal is allowed by remand.
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