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Showing 101 to 120 of 571 Records
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2005 (12) TMI 511 - CESTAT, MUMBAI
Valuation - Contemporaneous imports ... ... ... ... ..... epared and placed before him to demonstrate the downward trend in prices of Steel products, which led the Ld. Commissioner to reject the value arrived by the company the historical data of Customs House as in October 1996 to be comparable contemporaneous date applicable for imports in June 1997. (c) This chart and date therein has not been questioned by the Revenue in this appeal filed before us. (d) When material evidence is that there is gradual down trend in the price of this commodity, as submitted before the Commissioner (Appeals) by the appellants and recognized. Then we cannot find any reason to uphold the Revenue rsquo s appeal filed before us holding that historical data is available with Customs House of import of similar goods from the same supplied in October 96 and that to be considered as material evidence of contemporaneous price for imports effected in June 1997. 3. emsp Finding no merits in the grounds raised, the appeal is rejected. (Pronounced in the Court)
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2005 (12) TMI 510 - CESTAT, MUMBAI
Classification
... ... ... ... ..... below have considered the nature of the goods in question and catalogue before coming to the conclusion that the claim of the importers was not acceptable and classified the goods as under (1) emsp Photo Resist Coater - Chapter heading 8479.89 (2) emsp Developer - Chapter heading 8543.90 (3) emsp Laser Beam Recorder - Chapter heading 8521.10 3. emsp We have heard the ld. SDR and perused the records, as none appeard for the appellant in spite of notice. We find that there is no satisfactory ground adduced in the appeal before us so as to why the classification of above items is required to be set aside. 4. emsp We, therefore, uphold the impugned order and reject the appeal.
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2005 (12) TMI 509 - CESTAT, MUMBAI
Classification of goods - Exemption Notification No. 23/98-Cus. - Piston Ring Set imported by the respondents herein for use as components/parts of engines of Shakti Power Tillers - Held that: - it is very clear that the Tiller manufacturer has classified tillers under Chapter heading 84.32 and therefore, until that classification is altered is not permissible for the Customs authorities to change the classification of Tillers from Chapter heading 84.32 to Chapter 87 so as to hold that the imported items are parts of engines used for propulsion of vehicle falling under Chapter heading 87 - appeal dismissed.
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2005 (12) TMI 508 - CESTAT, BANGALORE
... ... ... ... ..... er house by Shri Ranjit and kept there. This will not lead to the conclusion that she has been dealing with the goods manufactured and clandestinely cleared by M/s. SSSHCPL . The finding recorded by the Commissioner to say the least is not correct. Further more there is no justification for imposing a penalty of Rs. 10 lakhs for the value of containers which is negligible. The Rule 209A lays down penalty for evasion of duty on goods and on persons who have dealt with it. The goods in the present case is ldquo SINDHURA rdquo Brand herbal face cream in packages/containers. Which has been recovered from the premises of the appellants is mere empty containers which are not the goods which have been manufactured by M/s. SSSHCPL. There is no case made out against the appellant, as there is no evidence in the case. Therefore the imposition of penalty of Rs. 10 lakhs is unjustified and uncalled for. The same is set aside by allowing the appeal. (Pronounced and dictated in open Court)
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2005 (12) TMI 507 - CESTAT, NEW DELHI
Confiscation ... ... ... ... ..... ties treating the main frames as consumer goods and confiscating them is required to be set aside. The valuation issue is not pressed by the ld. Counsel. 3. emsp The issue as to whether photocopiers are capital goods or consumer goods remains settled in favour of the assessee by the aforesaid judgment of the Larger Bench. Therefore, the present order, inasmuch as it has treated the machines as consumer goods, is not sustainable. Accordingly, we set aside the order of confiscation and allow the appeal to that extent. The appellant shall be entitled to the return of penalty and redemption fine already deposited. The appeal is, thus, partly allowed. (Dictated and pronounced in open Court on 28-12-2005)
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2005 (12) TMI 506 - CESTAT, BANGALORE
Refund - Unjust enrichment - Application of - Sale ... ... ... ... ..... v. PCC Pole Factory (supra), wherein on certain items duty had been paid, which were required to be refunded, as the goods had not been sold. The Tribunal held that in order to invoke provisions of Section 12B relating to presumption of passing on incidence of duty to buyer, the Revenue has to discharge the initial burden of proving that there is a buyer for the goods, which is possible only when a sale has taken place. In the present case, both the authorities have rightly taken a view that there was no sale of goods outside the organisation and therefore the items, which came into existence, on which duty was paid, were not goods and final products were also not sold. Therefore, the duty paid was required to be refunded. Hence, the view expressed by the Tribunal in the case of CCE v. PCC Pole Factory (supra) is required to be correctly applied to the facts of the present case. There is no merit in this appeal and the same is rejected. (Pronounced and dictated in open Court)
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2005 (12) TMI 505 - CESTAT, MUMBAI
Cenvat/Modvat - Declaration ... ... ... ... ..... that the Assistant Commissioner of Central Excise having jurisdiction over the factory of manufacturer intending to take credit is satisfied that duty due on the inputs has been paid and such inputs have actually been used or are to be used in the manufacture of final products, and such Assistant Commissioner shall record the reasons for not denying the credit so in each case . 3. emsp M/s. Monnet Industries Ltd. v. CCE, Meerut - 2003 (58) RLT 39 (CEGAT-Del.) page-39. This indicates that Modvat credit cannot be denied on the ground of declaration given not specific restriction of capital goods. 4. emsp The ld. JDR has reiterated the impugned order. After hearing the ld. Counsel and on perusal of the records I do not find any reason for the denial of the Modvat credit. 5. emsp I therefore, remand the matter to the adjudicating authority to pass fresh speaking order in the matter after taking into consideration the decisions mentioned above. (Pronounced in Court on 23-12-2005)
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2005 (12) TMI 504 - CESTAT, NEW DELHI
Confiscation of goods and penalty - Smuggled goods ... ... ... ... ..... s stating purchased by them for business purposes and they are not importers - Goods involved being not notified goods burden to prove that they are smuggled into country lies with department which has not been discharged - Confiscation and penalty set aside - Sections 111, 112 and 123 of Customs Act, 1962. rdquo 5.2 emsp From the above it is very clear that the department has failed to prove that the goods were smuggled, it is also not proved that the goods were smuggled by the appellant and that the goods were in the possession of the appellant illicitly. In the absence of any further investigation on the Adarsh Computers bill, the department has failed to discharge the initial burden cast on it that the goods were of smuggled nature. 6. emsp In view of the above circumstances, I hold that the impugned order is not legal and proper and are liable to be set aside. I set aside the impugned order and allow the appeal with consequential relief, if any. (Pronounced on 13-2-2006)
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2005 (12) TMI 503 - CESTAT, NEW DELHI
Production capacity based duty - Closure of unit - Abatement of duty ... ... ... ... ..... vitiated and is liable to be set aside. The order-in-original dated 27-5-2005 is set aside, and the abatement claim of the appellants for the years 1998-99 and 1999-2000 are allowed which are as follows - YEAR 1998-99 Sr. No. Closure period No. of days 1. 3-4-1998 to 17-4-1998 21 2. 24-4-1998 to 1-5-1998 8 3. 9-5-1998 to 15-5-1998 7 4. 1-6-1998 to 14-6-1998 14 5. 27-6-1998 to 3-7-1998 7 6. 18-7-1998 to 31-7-1998 14 7. 5-8-1998 to 17-8-1998 13 8. 14-9-1998 to 7-10-1998 24 9. 17-10-1998 to 8-11-1998 23 10. 23-11-1998 to 18-12-1998 26 11. 1-1-1999 to 15-1-1999 15 12. 22-1-1999 to 31-3-1999 33 13. 27-2-1999 to 31-3-1999 33 TOTAL 217 YEAR 1999-2000 1. 9-4-1999 to 16-4-1999 8 2. 29-4-1999 to 17-5-1999 19 3. 29-5-1999 to 20-6-1999 23 4. 17-7-1999 to 1-8-1999 16 5. 12-8-1999 to 7-9-1999 27 6. 25-9-1999 to 14-11-1999 51 7. 30-11-1999 to 8-12-1999 9 8. 5-1-2000 to 19-1-2000 15 9. 5-2-2000 to 18-2-2000 14 10. 17-3-2000 to 31-3-2000 15 TOTAL 197 The appeal is disposed of in above terms.
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2005 (12) TMI 502 - CESTAT, BANGALORE
Refund - Limitation - Bank Guarantee ... ... ... ... ..... a security and it cannot be considered as payment towards the duty. The High Court has referred to the Bombay High Court judgment rendered in the case of Mahindra and Mahindra Ltd. v. Union of India 1992 (59) E.L.T. 505 (Bom) and the Apex Court judgment rendered in the case of Oswal Agro Mills Ltd. (supra). In view of these judgments, the reliance placed by the Commissioner (Appeals) in the case of CC, Chennai v. Bharat Heavy Electricals Ltd. (supra) is not proper. The issue in Bharat Heavy Electricals Ltd. case is not pertaining to furnishing of Bank Guarantee and therefore this judgment is clearly distinguishable with the facts of the present case. In view of the plethora of judgments noted supra, the claim of refund of amount appropriated towards the Bank Guarantee is required to be refunded to the assessee with interest within a period of three months from the date of receipt of this order. The appeal is allowed. (Dictated and pronounced in the open Court on 20-12-2005)
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2005 (12) TMI 501 - CESTAT, BANGALORE
Cenvat/Modvat ... ... ... ... ..... Ltd. 2000 (119) E.L.T. 197 (Tri.-LB.) and Mira Silk Mills v. CCE, Mumbai 2003 (153) E.L.T. 686 (Tri. - L.B.) 2003 (110) ECR 49 (Tri. - L.B.) . He submits that after due consideration, the Bench has held that the benefit of credit has to be extended to the Welding Electrodes. 3. emsp On a careful consideration of the matter, I notice that this Bench (D.B.) after a due consideration of the matter in the light of the judgments of the Apex Court, High Court and other Larger Benches of the Tribunal has held that ruling of Jaypee Rewa Plant (supra) is not applicable as the Larger Bench has not noticed the Apex Court, High Court and other Larger Benches judgments. Therefore, the ratio of the India Sugars and Refineries Ltd. (supra) is clearly applicable to the facts of the present case. Respectfully following the ratio of the above said judgment, I do not find any merit in the Revenue rsquo s appeal and the same is rejected. (Dictated and pronounced in the open court on 20-12-2005)
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2005 (12) TMI 500 - CESTAT, MUMBAI
... ... ... ... ..... t is not carried in lying condition and it can carry 4 persons when the patient is carried in lying condition. Basically, the department rsquo s case is that since it can carry only 4 persons when the patient is carried on a stretcher and the vehicle is designed for such use, it would merit classification under sub-heading 8703.90 and not under sub-heading 8702.10. 3. emsp We find that a similar contention in the case of CCE, Jalandhar v. Swaraj Mazda Ltd. - 2005 (181) E.L.T. 90 (Tri-Del.) has been rejected by the Tribunal holding such ambulance to be classifiable under heading 87.02. The learned Advocate also informs us that the department rsquo s appeal against the Tribunal rsquo s order has been dismissed by the Hon rsquo ble Supreme Court on 16-7-2005. 4. emsp Following the decision of the Tribunal in the case of Swaraj Mazda (Supra), we hold that the impugned vehicles to be classifiable under sub-heading 8702.10. The impugned orders are set aside and appeals are allowed.
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2005 (12) TMI 499 - CESTAT, NEW DELHI
Valuation - Related buyer ... ... ... ... ..... could be adopted for the assessments of the sets in question also, as all the sets are sold on the same terms by the related buyer. 6. emsp In any case, the present valuation cannot be approved. Section 4 of the Central Excise Act specifically provides for deduction of sale tax, freight, trade discount etc. while determining the assessable value. The present order has been passed without allowing any of these deductions. 7. emsp In view of what is stated above, we set aside the impugned order and remand the case to the Commissioner for passing a fresh order of assessment by adopting the approved assessable value of identical sets manufactured by M/s. Video on International Ltd. In case such value is not available for a particular variety of television, the Commissioner shall pass a fresh order of assessment for that variety. Of course, after allowing deductions in respect of freight, sale tax and trade discount, on an appropriate basis. (Dictated and pronounced in open Court)
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2005 (12) TMI 498 - CESTAT, NEW DELHI
Appeal - Restoration of - Recall of order ... ... ... ... ..... absence of the learned Counsel for the appellant. However, since now it is pointed out that the advocate on record had gone to attend an ailing relative in the hospital, and since this fact is not disputed, we find that this is a fit case for recall of the order on the applicant paying costs to the respondent. The learned Counsel appearing for the applicant states that the applicants are willing to bear the costs quantified at Rs. 10,000/- (Rupees ten thousand only) which will be deposited by the applicants within one week from today with the concerned Commissioner. The final order made on 6-7-2005 is hereby recalled and this application is accordingly allowed with costs quantified at Rs. 10,000/- (Rupees ten thousand only) to be paid by the applicants to the respondent within one week from today. On such costs being paid, the appeal will be placed for final hearing on 11th January, 2006. This application stands disposed of accordingly. (Dictated in open court on 14-12-2005)
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2005 (12) TMI 497 - CESTAT, NEW DELHI
Refund - Erroneous refund ... ... ... ... ..... eld formations. rdquo 5. emsp The above said circular will come to the help of the department only if the issue in the case of refund, is decided in favour of the department. In the case before me the refund was sanctioned by the adjudicating authority following strictly the directions of this Tribunal and refund claim actually due was sanctioned. The appeal by the department to Commissioner (Appeals) and before me is based on the surmises that the adjudicating authority did not go into the merits of the case. I find this argument misconceived as, the Tribunal vide its order dated 12-10-2001, has considered all the aspects of the case and then gave directions to the adjudicating authority to consider the matter afresh, which he did rightly so. 6. emsp I do not find any irregularity in the order of the Commissioner (Appeals). The said order in appeal dated 5-8-04 does not require any interference. Appeal dismissed. (Operative part of the order was pronounced in the open Court)
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2005 (12) TMI 496 - CESTAT, MUMBAI
... ... ... ... ..... ame is hit by limitation and the duty was not deposited under protest. 4. emsp I have perused both the orders. The Commissioner (Appeals), while relying in para 83 of the judgment in Mafatlal rsquo s case, has confirmed the order of original adjudicating authority holding that the deposit made by the assessee during the pendency of the appeal proceedings amounts to deemed protest and the claim is not hit by limitation. Therefore, I do not see any substantial question of law is involved in the above appeals so as to exercise discretion in admitting the same. I find no merits to admit these appeals. Accordingly, all these appeals are rejected. (Pronounced in Court)
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2005 (12) TMI 495 - CESTAT, MUMBAI
Penalty - Smuggling - Evidence ... ... ... ... ..... bels and markings from the said smuggled goods. There is no material on record that the present appellant, who was allotted the shed by the Director of Industries, Gujarat, was in physical possession of the shed premises during the period or that Shri Girja Shankar was working with the consent and knowledge of the present appellant. In this view of the matter, we cannot find any concern of the appellant with the goods found in the truck to be established as smuggled. Nor is there any material that goods were to be brought to the above shed from where the truck was intercepted. 3. emsp In view of the above, we cannot find that that goods held liable to confiscation being smuggled were knowingly dealt with in any manner by the appellant. Therefore, we cannot uphold the penalty as arrived under Section 112(a) and 112(b) of the Customs Act, 1962 on the present appellant before us. The penalty imposed upon him is set aside and this appeal is thus allowed. (Pronounced in the Court)
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2005 (12) TMI 494 - CESTAT, BANGALORE
Adjudication - Remand proceedings - Demand ... ... ... ... ..... epancy in the stock of finished products and raw materials like essence and corks were noticed. There is no evidence to prove the allegation against the appellants that the receipt of raw material was not accounted in order to suppress production. The quantity of essence supplied by M/s. Parly Company was not correlated with the quantity of the final product manufactured by the appellant. After examining the case-laws in the cases of M/s. Krishna Bottlers and M/s. Moon Beverages, the adjudicating authority has come to the conclusion that the case is totally resting on the suspected sale of aerated waters under the distributors bill to the retail dealers. In view of these findings, we are of the opinion that the order dropping to proceedings is legal and proper. We do not find any merit in the order of the Commissioner (A). In these circumstances, we set aside the Order-in-Appeal and uphold the Order-in-Original dropping the proceedings. (Pronounced in open Court on 1-12-2005)
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2005 (12) TMI 493 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... des demanding duly thereon. A penalty was also proposed on that party. These proposals were also notified to the present applicants, who had financed the import and was keeping custody of the goods in terms of Section 29 of the State Financial Corporation Act. Besides the importer, this applicant was also heard by the Commissioner. In the impugned order, Ld. Commissioner confiscated the machinery with option for redemption thereof against payment of a fine. He also imposed a penalty of Rs. 3 lakhs on the importer, besides demanding customs duty on the machinery. The order of the Commissioner does not fix any liability on the present applicant. The prayer made in this application is to grant waiver of pre-deposit of the penalty amount imposed on the importer. 2. emsp After hearing both sides and considering their submissions, we find that the applicant has no locus standi to make a prayer of this kind. The application is dismissed. (Order dictated and pronounced in Open Court)
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2005 (12) TMI 492 - CESTAT, CHENNAI
Stay of operation of order ... ... ... ... ..... o the instant cases. This submission is contested by ld. Counsel, who submits that the view taken by the Larger Bench has since been adopted by the Govt. and, on that basis, the current Exim Policy stands amended. It is also submitted that, even according to the new Circular, second-hand goods will have to be treated as capital goods. 3. emsp After giving careful consideration to the submissions, we are unable to accept the proposition that the decision taken by the Tribunal rsquo s Larger Bench can be whittled down by the DGFT through an administrative circular. The Larger Bench decision holding that second-hand photocopier machines imported under the general provisions of the Exim Policy are freely importable still holds the field. In effect, the impugned order, which is in accord with the Larger Bench decision, should be allowed to hold the field. Hence the present application for stay of operation of that order get dismissed. (Order dictated and pronounced in open Court)
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