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Case Laws
Showing 101 to 120 of 624 Records
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2004 (2) TMI 642 - CALCUTTA HIGH COURT
Manufacture - Blending of tea - Precedent - Binding nature ... ... ... ... ..... of the judgment of the Division Bench of Karnataka High Court did not amount to a declaration of law by the Apex Court thereby making it binding under Article 141 of the Constitution as has been held in the case of Kunhay Ahmed (supra) and Supreme Court Employees rsquo Welfare Association (supra). In such circumstances, the finding of the co-ordinate Bench of this court in the case of Appeejay Pvt. Ltd (supra) being binding on this Court while deciding the present appeal and as the facts available in the case decided by the Division Bench of Karnataka High Court including the fact of user of sophisticated mechanical process and electro-mechanical weighers being not available in present case, we hold that the assessee is not entitled to deduction for investment allowance under Section 32A of the Income Tax Act, 1961 as the assessee cannot be held to be a manufacturer or producer in the facts available. Therefore, the appeal is dismissed. Assent per S.K. Gupta, J. . - I agree.
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2004 (2) TMI 641 - CESTAT, NEW DELHI
Medicines - Pharmacopoeial medicines ... ... ... ... ..... th, add sugar 5 kg and citric acid (Nimbu Sattva) 3.75 gms. Prepare syrup, cool and add edible green colour according to requirement. ldquo 7.3 emsp There is nothing brought on record by Revenue to establish that the product ldquo Shankhapushpi syrup rdquo is not manufactured by the Appellants according to the formulae described in the authoritative book. The Appellants have brought on record the Certificate dated 2-8-2002 issued by the Director Ayurved-cum-Licensing Authority, Simla, Himachal Pradesh to the effect that both the impugned products fall under the category of Generic Medicaments. The Revenue has also not adduced any expert opinion/Certificate in support of their contention that the impugned medicines have not been manufactured exclusively in accordance with the formulae described in the authoritative books. Accordingly we set aside the impugned order and hold that both the impugned products are classifiable under sub-heading 3003.31 of the Central Excise Tariff.
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2004 (2) TMI 640 - CESTAT, NEW DELHI
Export - DEPB Scheme ... ... ... ... ..... ings, therefore, it is not complete tabular fabric manufacturing plant. The contention of the Revenue is that it is complete tabular fabric manufacturing plant and composite contract was entered into between the respondents and their customer specifying the composite price. 4. emsp The respondents produced a copy of the contract and as per the contract, we find that in the clause price schedule the price of two different machines was mentioned. The respondents also submitted that these are two different stream of machines to undertake two different independent processes which may be or may not be related. The plastic extrusion machinery has no connective with the circular weaving machine. 5. emsp These arguments were raised before the Commissioner (Appeals) and accepted by the Commissioner (Appeals). The Revenue had not produced any evidence to controvert these findings in the present appeal. Therefore, we find no infirmity in the impugned order hence the appeal is dismissed.
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2004 (2) TMI 639 - SETTLEMENT COMMISSION, CUSTOMS & CENTRAL EXCISE, N
ent of case - Immunity from penalty and prosecution ... ... ... ... ..... intimated to this Bench. (iii) Immunity is granted to the applicant from penalty and prosecution under the provisions of the Act and rules thereunder. 9. emsp The above immunities are granted in terms of Section 32K (1) of the Act. The same are liable to be withdrawn if it comes to notice of the Commission at any time that the applicant has withheld any particular material to the Settlement or has given false evidence or employed any fraudulent means. 10. emsp Attention of the applicant is drawn to Sub-section (10) of the Section 32F of the Act. Attention is also drawn to Sub-sections (2) and (3) of Section 32K of the Act so far as immunities granted under this order are concerned. The settlement shall be void if it is subsequently found by the Commission that it has been obtained by fraud or misrepresentation of facts. The applicant is also warned that the immunities are liable to be withdrawn, if the interest amount is not paid within the period given in Para 8 (ii) above.
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2004 (2) TMI 638 - CESTAT, NEW DELHI
Customs House Agent Licence - Suspension of ... ... ... ... ..... pheld by the Tribunal, the identity card issued to the employee of M/s. Skyways gets cancelled automatically as it is a consequential action. 4. emsp We have considered the submissions of both the sides. As submitted by the learned S.D.R., the appeal filed by M/s. Skyways against cancellation of their CHA licence, has already been rejected by the Tribunal vide Final Order No. A/565/03-NB(C), dated 16-10-2003 2004 (163) E.L.T. 474 (T) . The provisions of Regulation 20 of CHA Regulation are very clear. The Assistant Commissioner issues an identity card in form ldquo G rdquo to an employee of Customs House Agent, who has been appointed after obtaining the approval. The employee appointed by CHA is to assist him in his work as CHA. Once the licence of CHA itself has been cancelled by the Commissioner and the appeal filed by CHA has also been rejected, the identity card has to be cancelled as he is no more employee of the CHA. There is, thus, no merit in appeal, which is rejected.
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2004 (2) TMI 637 - SETTLEMENT COMMISSION, CUSTOMS & CENTRAL EXCISE, C
Settlement of case - Immunity from penalty, prosecution and fine ... ... ... ... ..... y on M/s. Tolani Shipping Company Limited is settled at Rs. 59,65,059/-. Since even as per the report of the DRI the said amount has been deposited and the same is ordered to be adjusted against the above settled duty liability. No further amount needs to be paid. (2) Immunity is granted from interest, penalty, prosecution and fine in lieu of confiscation under the provisions of the Customs Act, 1962. (3) Immunity is granted to Shri A.K. Srivastava, Executive Director of M/s. Tolani Shipping from penalty and prosecution under the Customs Act, 1962. The above immunities are granted in terms of Section 127H(1) of the Customs Act, 1962. The immunities granted above are liable to be withdrawn, if at any time it comes to the notice of the Bench that in obtaining this order of settlement any material particulars have been withheld or any false evidence has been given. The attention of the applicants is also drawn to Sub-Sections (2) and (3) of Section 127C of the Customs Act, 1962.
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2004 (2) TMI 636 - CESTAT, BANGALORE
Cenvat/Modvat - Re-adjudication - Scope ... ... ... ... ..... chased from dealers to whom the goods were sold by the consignment agent of TISCO and the original documents were not endorsed, but only the carbon copies were endorsed to the appellants. 8. emsp The appellant has also raised the issue on time bar, which cannot be raised at this stage as the Commissioner has passed the order as per the directions contained in the remand order of the CEGAT. Time bar issue was not referred to Commissioner for decision in the remand order. If the appellants were aggrieved of any other issue, then they could have raised that issue before the CEGAT when the matter was remanded and if they were not satisfied with the remand order, they could have filed an appeal against that order. Now new issues cannot be raised before us beyond the scope of remand order as the order of Commissioner is to be seen with reference to the directions given by CEGAT in the order remanding the case. 9. emsp We do not find any merit in the appeal and the same is rejected.
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2004 (2) TMI 635 - CESTAT, MUMBAI
Appeal - Condonation of delay ... ... ... ... ..... the stand of the assessees that the impugned order was received only on 16-9-2002 remains unrebutted and we therefore proceed on this basis. 2. emsp The explanation for the delay is serious illness of the Director of the company, who had been hospitalised during the period 14th December, 2002 that the unit had been lying closed since 1999 and the other employees had left the services of the company. We are satisfied with the reason for the delay and accordingly condone the delay. 3. emsp The COD application is hereby allowed. The stay application is adjourned to 6th April, 2004 to enable the Learned DR to produce case records to show whether notice of personal hearing was sent to the assessees.
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2004 (2) TMI 634 - CESTAT, NEW DELHI
Appeal - Limitation - Delay of 4 years, 7 months and 8 days in filing ... ... ... ... ..... ws that it was an order determining the annual capacity of production of the mill of the applicants. As per Section 35B of the Central Excise Act, every appeal has to be filed within three months from the date on which the order said to be appealed against is communicated to the person preferring the appeal. It is not disputed by the applicants that the impugned order was received by them on 20-5-99. Therefore, the appeal should have been filed by them within three months commencing from 20-5-99. There is no force in their contention that they had represented the matter against determination of their annual capacity production with the Commissioner. The right course open to them was to file an appeal against the determination of the annual capacity before the Tribunal. The applicants have not advanced sufficient reason for condonation of delay. We, therefore, reject their application for condoning the delay in filing the appeal. Consequently, the appeal also stands dismissed.
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2004 (2) TMI 633 - CESTAT, NEW DELHI
Demand - Limitation - Demand and penalty - Shortage of inputs - Confiscation - Excess goods ... ... ... ... ..... e accounted for in R.G. I that this has been the practice in their factory which was never objected to by the Central Excise Officers, who had visited their factory. It is not in dispute that the finished goods, worth more than Rs. 18.57 lakh were found in excess of the statutory records. As per the provisions of Rule 53 of the Central Excise Rules, 1944, at the relevant time every manufacturer has to maintain a stock account daily in prescribed form in which the goods manufactured, removed, etc. would be mentioned daily that as the appellants have not entered the goods in their statutory records these are liable for confiscation. The redemption fine, however, is on the higher side which is reduced to Rs. 2 lakh. In the facts and circumstances of the case there is no warrant to impose separate penalties on Executive Director and Authorised Signatory. We, therefore, set aside the penalties imposed on Appellant nos. 2 and 3. All the 3 appeals are disposed of in the above terms.
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2004 (2) TMI 632 - CESTAT, NEW DELHI
Demand and penalty - Clandestine removal ... ... ... ... ..... sioner and hold that there is no scope to consider the defence argument that the figures reflected in the Bank statements do not reflect the correct production and the figures have been inflated to obtain higher bank credits. 9. emsp The other defence is that the customers are reputed companies, namely, Nestle, Britannia etc. who are making payment in cheques. If that be so, nothing could have prevented the appellants to have approached them and sought from them, as to whether or not, the disputed quantities were purchased by them. Therefore we hold that, there is no merit in the submissions made on this count. 10. emsp On similar considerations, we hold that the duty demands in respect of duplicate invoice and bank bills also are fully justified. Consequent to confirmation of fact of evasion, the penalties imposed are also justified. We therefore, hold that there are no merits in either appeals and the same deserve to be rejected. 11. emsp Accordingly, we reject the appeals.
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2004 (2) TMI 631 - CESTAT, NEW DELHI
Confiscation and penalty ... ... ... ... ..... ing only one ground that proper procedure was not followed by the appellants and intimation was not given to the Department, does not amount to abandonment of other facts and grounds as detailed in the show cause notice by the Department. From the facts and circumstances narrated above, it stands amply proved that there was clearance of the goods (machines) by the appellants from the factory premises, without payment of duty. Therefore, the duty demand has been rightly confirmed against them. 6. emsp The argument of the Counsel that the machines could not be confiscated and no redemption fine and penalty could be imposed, also cannot be accepted, when there had been duty evasion on the part of the appellants by removal of machines. The machines had been rightly confiscated and penalty has also been correctly imposed. I do not find any illegality in the impugned order in this regard. 7. emsp In the light of the discussions made above, the appeal of the appellants is dismissed.
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2004 (2) TMI 630 - CESTAT, MUMBAI
Cenvat/Modvat - Deemed credit ... ... ... ... ..... , in terms of which the said deemed credit has been claimed, it is revealed that, in terms of explanation II to the said notification, it has been expressly provided therein that, where processed fabrics itself is used as an input for further processing then, the provisions of the notification are not applicable. On plain reading of this provision, it is clear that when the appellants received the processed fabrics from the respective job workers as inputs, which were subjected to further processing such as padding, stentering and calendering, before effecting clearance for the second time the inputs received from the job workers being processed fabrics, the benefit of Notification No. 29/96-C.E. (N.T.) is not available to the appellants. 4. emsp On the basis of the above analysis, I hold that the denial of deemed credit to the appellants by the lower authorities was in accordance with the law and does not call for any interference. 5. emsp The appeal is accordingly rejected.
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2004 (2) TMI 629 - CESTAT, MUMBAI
Cenvat/Modvat - Capital goods ... ... ... ... ..... that these items were not being used in the machines. The objection was only to the effect that these were not capital goods. 2. emsp The lower authorities disallowed the claim hence the appeal to the Tribunal. 3. emsp Heard both sides and perused the records. It is apparent that, the impugned goods are used as parts of the machine, as explained above. In the definition of capital goods as contained in the Rule 57Q, parts of machinery falling in whatever heading are included as capital goods. The machinery in which the impugned goods have been used are not stated to be the ineligible ones. Hence the parts, thereof, whatever be their nature, whether significant, durable or needing frequent replacements, are all covered by the scope of the definition of ldquo parts rdquo . 4. emsp Consequently I hold that the credit is not deniable. Therefore, I set aside the orders passed by the lower authorities and allow the appeal with consequential reliefs, if any, in accordance with law.
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2004 (2) TMI 628 - CESTAT, CHENNAI
Refund - Unjust enrichment ... ... ... ... ..... has come to a conclusion that no evidence was produced. Therefore, there is clear contradiction in the Commissioner rsquo s findings. The plea raised by the ld. Consultant that there is no application of mind is justified. The Commissioner ought to have gone into all the pleadings and submissions made by the appellants and should have recorded specific findings about the duty element not having been passed on to the consumers. The contention is that the price of export had been fixed much earlier and there was no variation in the same. By mistake, the duty CVD was paid, which was not to be added to the price. They produced evidence. This evidence have been gone into. If the submission is correct, then, the claim is required to be granted. Therefore, the impugned order is set aside and matter remanded to Commissioner (Appeals) for de novo consideration. The matter shall be re-adjudicated within a period of six months. Appeal is allowed by remand to the Commissioner (Appeals).
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2004 (2) TMI 627 - CESTAT, CHENNAI
Appeal - Dismissal for want of prosecution ... ... ... ... ..... records for service of the notice. The matter cannot be heard, as the appellants have not turned up. They have not filed documents for considering their appeal. In terms of Apex Court judgment rendered in the case of Commissioner of Central Excise v. Electrolytic Foils Ltd. reported in 1997 (91) E.L.T. 543 (S.C.), the matter cannot be heard. Hence, the appeal is dismissed for want of prosecution.
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2004 (2) TMI 626 - CESTAT, BANGALORE
Adjudication - Cenvat/Modvat ... ... ... ... ..... case is whether the party is entitled the benefit of Cenvat credit to the extent of 100 or 75 . Further he submitted that no finding has been given by the adjudicating authority with reference to the plea taken by the party on applicability of the provisions in terms of Rule 57AC(2)(c). 5. emsp On a careful consideration of the submissions made by both sides, we find that the party has taken the specific plea on applicability of provisions in terms of Rule 57AC(2)(c) and the same has not been properly examined by the adjudicating authority. In view of this factual discrepancy, we are of the view that the matter requires to be re-examined by the adjudicating authority. In the view we have taken, the matter is remanded to the concerned adjudicating authority to examine the issue afresh and to pass an appropriate order in accordance with law on providing an opportunity to the party. All connected issues are kept open. 6. emsp Thus, this appeal is disposed of in the above terms.
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2004 (2) TMI 625 - CESTAT, NEW DELHI
Import - OGL - Valuation ... ... ... ... ..... ken by the Customs Authorities cannot be upheld. However, the charge of importing old machines without import licence has been correctly made. According to the Import Policy, second-hand goods which are more than 10 years old require import licence. Appellant has not cared to obtain such a licence. For this reason, consignment was liable to confiscation. 4. emsp In view of the findings reached above, the enhanced value fixed by the Customs authorities is set aside. However, the confiscation of the goods for want of import licence is upheld. Redemption fine is reduced to Rs. 15,000/- (Rupees fifteen thousand only) and the penalty is reduced to Rs. 10,000/- (Rupees ten thousand only). It is ordered that the goods be reassessed at the declared value and duty levied. Excess duty paid at the time of redeeming the goods shall be refunded to the appellant. So too, redemption fine and penalty collected in excess of the amounts fixed above. Appeal is partly allowed in the above terms.
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2004 (2) TMI 624 - CESTAT, NEW DELHI
Production capacity based duty - Annual capacity of production - Determination of ... ... ... ... ..... our charges for modification of medium frequency induction melting furnace copper coil. These are invoices given by Superheat Electromag P. Ltd. who have reduced the coil and height and on the basis of that they have mentioned the holding capacity to be 4025 kgs. of liquid steel. The Appellants have not controverted the submission of the learned SDR to this effect. We observe from the documents brought on record that Superheat Electromag P. Ltd. had supplied to the Appellants 2 nos. of 5 tonnes capacity induction melting furnace in the past which had been modified by them in 1999. Such invoice for labour charges cannot be treated as authenticated copy of invoice referred to in sub-rule (1) of Rule 3 of Capacity Determination Rules. Accordingly the Commissioner has gone by the actual parameters of the furnace which were taken in the presence of the witnesses and the Director of the Appellant company. We, therefore, find no infirmity in the impugned Order and reject the appeal.
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2004 (2) TMI 623 - CESTAT, MUMBAI
Cenvat/Modvat ... ... ... ... ..... ng the HSN that precisely such acids to be containing between 77 and 100 Sulphuric acid and that the Notes nowhere mentions that acid containing less than 77 will not be regarded as sulphuric acid, had held that the percentage verification of the acid was not relevant for determining the excisability. 2. emsp There is no finding in the order that the commodity after the operations conducted by the same appellants did not result in a new commodity, commercially understood by the persons dealing with them. It is well settled law that even if the goods belong to same entry, manufacture does take place if new identifiable/marketable goods known in market emerges due to operation conducted and that the nature of technology used is not relevant see Laminated Packagings Ltd. - 1990 (49) E.L.T. 326 and Indian Aluminium - 1985 (21) E.L.T. 3 (S.C.) at para 13 . If that is so, the entitlement of Modvat credit cannot be denied. 3. emsp In view of the findings, we would allow this appeal.
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