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Case Laws
Showing 101 to 120 of 559 Records
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2003 (11) TMI 550 - ITAT JODHPUR
Assessment - Additions to income ... ... ... ... ..... e aforesaid order of the CIT(A), assessee rsquo s assessment for assessment year 1992-93, where GP rate was declared at 10.9 should have been completed after accepting the GP rate declared by the assessee, keeping in view the past history of the case. 4. Ld. DR on the other hand, has supported the order of the CIT(A) who has deleted the part of the addition made by the Assessing Officer. 5. After having considered the totality of the facts and circumstances of the case and rival submissions, I am of the view that revenue having accepted the GP rate of 10.9 in assessment year 1991-92, trading results should not have been disturbed unless and until there were strong reasons for doing so. From the order of the revenue authorities, no strong reason has surface and therefore, I am of the opinion that the CIT(A) was not justified in sustaining the part of the addition made by the Assessing Officer. The same is therefore, deleted. 6. In the result, appeal of the assessee is allowed.
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2003 (11) TMI 549 - ITAT MUMBAI
Association of persons ... ... ... ... ..... ore us. It is undisputed that the share of assessee in the AOP viz. M/s. Paks Trade Centre was determined and known as it is apparent from the assessment order passed in the case of Paks Trade Centre, where the loss of share of Rs. 3,26,221 has been allocated in the hands of assessee company. According to section 67A such share of a member of AOP for the purpose of assessment of assessee has to be apportioned under the head business income. Therefore, in accordance with section 70 of the Act the set off of said loss was required to be given against other business income. Thus, we are of the opinion the CIT(A) was wrong in not admitting the claim of assessee regarding set off of determined and known share of loss against other business income. We, therefore direct the Assessing Officer to give set off of such loss to the assessee against its other business income as per provisions of sections 67A and 70 of the Act. 9. In the result, the appeal filed by the assessee is allowed.
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2003 (11) TMI 548 - CESTAT, NEW DELHI
Classifiaction - Sugar Syrup - Flavoured Sugar Syrup ... ... ... ... ..... was ldquo LAY rsquo S rdquo . Some goods were packed and cleared with brand name. Others were cleared in packages on which name lsquo M/s. Frito Lay India rsquo was printed. This Tribunal held that packages which did not bear brand name ldquo LAY rsquo S rdquo cannot be classified in the heading for goods bearing lsquo brand name rsquo . Appellant rsquo s case remains squarely covered by this decision. The decision in Tarai Food is not attracted to the present case inasmuch as that decision was rendered taking into account other factors like logo, the way in which the goods were described on packages etc. 7. emsp In view of what is stated above, we hold that the impugned order is clearly contrary to the terms of classification in the two headings and decision of the Tribunal in Pepsi Foods Ltd. case. It is, accordingly, set aside and appeals are allowed with consequential relief, if any, to the appellant. (Operative part of the order already pronounced in Court on 19-11-2003)
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2003 (11) TMI 547 - CESTAT, MUMBAI
Penalty, when demand dropped - Clandestine removal ... ... ... ... ..... emoval without payment of duty of excess production of dutiable goods. Various reasons and circumstances leading to difference arising between theoretical and actual production submitted by the assessee and as discussed in the preceding paras are plausible and stand unrebutted. The verification exercise carried out and reported by the Divisional a Deputy Commissioner showing the actual variation are more or less in consonance with the variation indicated in the show cause notice. The Superintendent rsquo s report has also shown a new aspect of variation to the extent of 1 because of slight over filing by assessee as a precaution so as to not inadvertently breach requirements of Consumer Protection Act rdquo . 3. emsp Since no case is established of violation of any rule with intention to evade duty and no removal of non duty paid goods established is no demands are confirmed. Penalty under Rule 173Q(1) cannot be upheld, same is to be set aside. Appeal is consequently allowed.
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2003 (11) TMI 546 - CESTAT, KOLKATA
Penalty - Personal penalty - Smuggling - Evidence ... ... ... ... ..... ame is corroborated in material particulars by independent witness. 3. emsp After hearing Shri P.K. Das, learned Advocate for the appellant and Shri N.K. Mishra, learned J.D.R. for the Revenue, I agree with the above contention of the appellant. I find that the statement of Shri Sums Tebraj is the only basis for imposition of penalty upon the appellant. There is also a reference to a previous case where the appellant was again named by another co-accused as the recipient of the smuggled silver. However, the previous case may raise doubt against the appellant, but cannot take the place of evidence so as to impose penalty upon the appellant in the present case also. Inasmuch as there is nothing on record to corroborate the statement of the co-accused in the present case, I find no justification for imposition of penalty upon the appellant. Accordingly, the impugned Order imposing penalty upon the appellant is set aside and the appeal is allowed with consequential relief to him.
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2003 (11) TMI 545 - CESTAT, MUMBAI
Confiscation and penalty ... ... ... ... ..... ot aware of the requirements of Rule 9, Rule 47, Rule 49, Rule 173G of the Central Excise Rules, 1944 rdquo . Lead to the conclusion that B-Grade classification has not been arrived at, which is admittedly arrived after due tests and analysis. The non-entry thereof in RG1 should not raise any presumption advise to the assessee, since goods are required to be tested to check whether they are sweepings or B-Grade material. (iii) Since the goods are found to be slippages, they could as well be part of the goods removed on payment of duty and thus could be duty paid. Entry of such duty paid goods retained in the factory, due to leaks in packs/slippage and eventual sweeping in the RG1 is not shown why it is to be maintained. (iv) Following the two members decision in the case of Anil Sunil Trade and Investments (P) Ltd. 2001 (129) E.L.T. 616 this appeal is required to be allowed after setting aside the order. 3. emsp Consequently, the appeal is allowed with consequential benefits.
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2003 (11) TMI 544 - CESTAT, KOLKATA
Production capacity based duty - Abatement of duty ... ... ... ... ..... oduction during the relevant period was zero, still the respondent company was under a liability to discharge the duty in terms of the A.C.P. fixed. However, the above legal plea raised by the Revenue is not find favoured with, inasmuch as the provisions of sub-rule 2 of Rule 96ZP clearly lays down the allowing of abatement on account of closure of the factory for a continuous period of not less than seven days. It shows that while the said rule prescribes the minimum period of closure of factory for seven days, there is no maximum limit laid down under the said Rule. Inasmuch as the fact of closure of the factory during the period in dispute has not been challenged by the Revenue, we do not find any infirmity in the view taken by the Commissioner that abatement for the said period was permissible. Accordingly, no merits are found in the Revenue rsquo s case. All the appeals are accordingly rejected. The cross-objections filed by the respondent-company also stand disposed of.
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2003 (11) TMI 543 - CESTAT, BANGALORE
Cenvat/Modvat - Induction Coil - Capital goods ... ... ... ... ..... C.E., dated 16-3-95. 4. emsp We have carefully considered that matter. We find that there is a categorical finding by the Commissioner in the order that induction coils are components of induction furnace. This fact has not been reverted by the Department by showing any evidence. Being a component of the induction furnace, these coils clearly satisfy the definition in Rule 57Q of the Central Excise Rules, 1944 for capital goods as it was rightly held by the Commissioner. We do not find any infirmity in the impugned order. In view of this position, the appeal filed by the Revenue is herby dismissed.
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2003 (11) TMI 542 - CESTAT, NEW DELHI
Cenvat/Modvat - Input duty credit ... ... ... ... ..... e pith and substance of the definition. There is only a textual re-structuring. Moreover, it is found that, in these cases, the appellants have relied on the first half of the definition which reads - ldquo inputs means all goods except high speed diesel oil and motor spirit, commonly known as petrol, used in or in relation to the manufacture of final products whether directly or indirectly and whether contained in the final product or not. rdquo This part of the definition has not been even restructured. The decision of this Bench in the cited cases of J.K. Udaipur Udyog and Birla Corporation should, therefore, apply to the instant cases as well. Accordingly, these two appeals are also allowed. 6. emsp If any deposit made by any of these appellants under Section 35-F of the Central Excise Act is lying with the Department, the same shall be refunded to them as early as possible, at any rate within a period of 30 days from the date of receipt of a certified copy of this order.
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2003 (11) TMI 541 - CESTAT, BANGALORE
Cenvat/Modvat Credit ... ... ... ... ..... dit should not be given on headlight assembly and dynamo. 4. emsp The learned advocate Shri Jayasankar, showed the schematic diagram of the IC engine and explained how the headlight assembly and dynamo are integrally connected with the IC engines. He also read part of the Order of the Commissioner (Appeals), where this issue has been discussed. He also stated that these engines with headlight assembly and dynamo are being used by them in the manufacture of Power Tillers and they are also selling these engines to others. 5. emsp I find that the Commissioner (Appeals) has given proper reasoning for allowing modvat credit on both these items. In view of this, the Departmental appeal is rejected.
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2003 (11) TMI 540 - CESTAT, NEW DELHI
Penalty - Non-accountal of finished goods ... ... ... ... ..... the appellants have not accounted for and indulged in suppression of production of various flavours of aerated water. There is no proposal in the show cause notice to impose penalty under Rule 173Q for non-accountal of various raw materials. Therefore, the penalty could have been imposed only under Rule 173Q for non-accountal of the finished goods or their clandestine removal. The said charge having been dropped, the penalty could not have been imposed on the appellants in terms of the contents of the show cause notice. If the ld. DR rsquo s submission is to be accepted that the penalty was for non-accountal of various raw materials, then such specific allegations having not been levelled in the show cause notice, the order imposing penalty under Rule 173Q, as done by the ld. Commissioner, cannot be sustained. 5. emsp Accordingly, the appeals succeed, the same are allowed and the impugned order is set aside to the extent it relates to imposition of penalty on the appellants.
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2003 (11) TMI 539 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... ..for export out of India or for being used in connection with the production, manufacture or packaging of the said articles.............for export out of India by 100 Export Oriented Undertakings..........subject to certain conditions rdquo . According to Para 3 of the notification the liability to pay customs duty would arise on goods used for the purpose of the production, manufacture of packaging of articles, which are not excisable. In the present goods the articles which are not excisable are the cut flowers cleared by the applicants to DTA, the liability to pay duty, prima facie under Para 3 of the notification is on the inputs used in the manufacture, production or packaging of the cut flowers and not on the cut flowers themselves. We, therefore, hold that a strong prima facie case for waiver has been made out by the applicants on plain reading of the notification and hence dispense with the pre-deposit of duty and penalty and stay recovery thereof pending the appeal.
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2003 (11) TMI 538 - CESTAT, MUMBAI
Cenvat/Modvat - Accountal of raw materials ... ... ... ... ..... ter all, the purpose of any investigation is to find out the truth. The adjudicating officer also has committed the same lapse as of the officers in solely basing his findings on the basis of statutory records. While demanding duty of Rs. 67,141.61, the Commissioner observes that this duty is recoverable because the appellants have taken credit of this amount in their RG23A Part-II without making a corresponding entry in the RG23A Part-I. The whole exercise of the Commissioner appears to be only to confirm the allegations made in the show cause notice without going into the merits of the appellants rsquo case. We find no justification for either demanding duty on the shortages of raw materials or confiscating the excess raw material or demanding duty or imposing penalties as has been done by the Commissioner. 5. emsp In view of the above observations, we find that the impugned order cannot be sustained. It is set aside. The appeal is allowed with consequential relief, if any.
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2003 (11) TMI 537 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... credit had been taken. The contention of the representative of the applicant that there being no act or omission by it which would justify invoking the extended period and therefore the demand is barred by limitation prima facie has to be accepted. The extended period contained in the proviso under Section 28(1) not apply where the person from whom the duty has been demanded or his agent or employee has not committed any act or is responsible for any omission which would attract any of the circumstances specified in that proviso. The Commissioner attempts to get this to say that the applicant could have exercised proper care before the licence was transferred is no answer. The transfer of the licence has been permitted by the licensing authority. The applicant rsquo s case is supported by various decisions of the Tribunal in Plastchem Industries v. CCE - 2000 (120) E.L.T. 775. 3. emsp On this prima facie view, we waive deposit of the duty and penalty and stay their recovery.
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2003 (11) TMI 536 - CESTAT, NEW DELHI
Clasifiaction ... ... ... ... ..... ff. 3. emsp The contention of the applicant is that Commissioner (Appeals), in the impugned Order without giving any reasoning, classified the goods under Heading 8455.90 whereas the Assistant Commissioner classified the impugned goods under Heading 84.28, which is accepted by the applicant. Taking into consideration the facts and circumstances of the case, we find that applicant had a strong prima facie case in their favour. Therefore, pre-deposit of duty is waived for hearing of the Appeal. Adjourned to 1-1-2004 for arguments.
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2003 (11) TMI 535 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Exemption to Hospital Equipments ... ... ... ... ..... der and the cancellation of their customs duty exemption certificate by the Director General Health Services the Applicants have not made out a prima facie case in their favour for waiver of pre-deposit of the entire amount of duty. We also do not find that direction to deposit any sum in compliance with the provisions of Section 129E of the Customs Act would cause them undue financial hardship as they have suffered a loss of only Rs. 19,252/- when their total receipts are more than Rs. 18.60 lacs. We, therefore, direct the Applicants to deposit a sum of Rs. 15 lacs within 8 weeks from today and on complying with this direction there shall be waiver of pre-deposit of remaining amount of duty and the 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 28-1-2004. Any failure to comply with this direction will result in dismissal of their appeal without any further notice.
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2003 (11) TMI 534 - CESTAT, MUMBAI
Cenvat/Modvat - Denial of credit - Refund ... ... ... ... ..... s is not proper course of action, it is to be found that the definition of refund under Section 11B does not include Modvat credits in reports that credits cannot be recovered under time-limit provisions of Section 11A as they were not covered by the terms of that section has been settled by the Supreme Court. On the same analogy refunds cannot be considered under Section 11B of accounting entries in Modvat credit account register. 4. emsp This appeal is therefore to be allowed with consequential relief.
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2003 (11) TMI 533 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Natural justice ... ... ... ... ..... relied upon were placed before them. They had all the opportunity to demolish these statements during the proceedings. Cross-examination cannot be claimed as a matter of right in departmental proceedings. Each case has to be examined on its own merits. In regard to the financial hardship claimed, we observe that the audited balance sheet has not been tendered. The claim of the applicants that they have accumulated losses over the years is taken into consideration. The applicants failed to make a strong prima facie case in their favour. We do not consider that this is case fit to waive pre-deposit of duty and penalty completely. 7. emsp M/s. Shivom Ply-N-Wood is ordered to deposit Rs. 50 lakhs towards duty and Rs. 10 lakhs towards penalty, within 12 weeks from today. Upon compliance, further deposit is waived and recovery stayed. If the applicant fails to comply with these orders by 8-3-2004, the appeal will be dismissed without further notice. 8. emsp Compliance by 8-3-2004.
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2003 (11) TMI 532 - CESTAT, NEW DELHI
Penalty - Quantum of - Cenvat/Modvat - Abatement of duty ... ... ... ... ..... alue in terms of Section 4(4)(d)(i), the penalty is liable to be reduced as the amount of duty payable by them would come down considerably. 4. emsp We have considered the submissions of both the sides. As learned Advocate for the respondents is not contesting the disallowance of Modvat credit amounting to Rs. 46,168/- we hold that the Modvat credit amounting to Rs. 8,17,678/- allowed by the Commissioner will be reduced by the said amount i.e. Rs. 46,168/. To this extent, the Appeal filed by the Revenue is allowed. On the aspect of quantum of penalty, we agree with the learned Advocate for the respondents that the quantum of penalty has to be reduced in view of the fact that total duty liability of the respondents has come down on account of availability of Modvat credit and redetermination of the assessable value. We, therefore, do not find any reason to interfere with the imposition of penalty of Rs. 50,000/- on the respondents. The Appeal is disposed of in the above terms.
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2003 (11) TMI 531 - CESTAT, BANGALORE
Stay/Dispensation of pre-deposit - Duty and penalty ... ... ... ... ..... ha Arun, SDR for Revenue who justified the action of the Department in raising the duty demand as well as imposing penalty. 5. emsp We have carefully considered the submissions made by both sides. We find that lot of inconsistencies in the order while demanding duty. There is force in the arguments advanced on behalf of the assessee that if warehousing certificate was not issued, the demand suffers from want of jurisdiction. On the other hand, the Department was of the view that the transfer bond was closed on receipt of re-warehousing certificate issued by the jurisdictional authorities and it was urged by the Counsel that the demand under Section 28 is barred by time. In view of this position and giving credence to the submissions made by the Counsel and furthermore, the Department has confiscated the goods valued at more than 5 crores, we are of the view that this is a fit case to grant stay as prayed for and accordingly these stay applications are allowed unconditionally.
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