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Showing 121 to 140 of 558 Records
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2004 (10) TMI 521 - CESTAT, BANGALORE
Adjudication - Re-adjudication on remand ... ... ... ... ..... ed to demand duty and impose penalty. We find no substance in this submission for the reason that, after the remand by the Tribunal for consideration of the claims for abatement, the Commissioner has decided the issue of abatement as well as adjudicated show cause notice dated 26-2-1999 by which an amount of duty of Rs. 21 lakhs was proposed to be recovered, by scaling down the demand of Rs. 27,47,200/- after allowing certain claims for abatement. The further plea that order has been passed ex-parte is also not tenable, in view of the fact that the Commissioner has clearly recorded that the assessee appeared for personal hearing on 3-3-2003 and re-iterated the points raised in the reply to the show cause notice. 3. emsp In the result we held that no case has been made out by the assessee and accordingly uphold the impugned order of confirmation of duty and interest however, we reduce the penalty to Rs. 1,50,000/-. 4. emsp The appeal is thus partly allowed. (Dictated in Court)
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2004 (10) TMI 520 - CESTAT, BANGALORE
Cenvat/Modvat ... ... ... ... ..... , the Apex Court has held that effluent treatment p ant is used in the manufacture of fertilisers, in the context of exemption to raw naphtha under Notification No. 187/61-C.E. In the light of the above judgment, TGT plant is to be held as used in the manufacture of zinc/cadmium/lead which are the final products of the respondents. This being so, Modvat credit has rightly been extended by the Commissioner (Appeals) vide the impugned orders. We accordingly uphold the same and reject the appeals of the Revenue. (Operative part pronounced in Court).
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2004 (10) TMI 519 - CESTAT, KOLKATA
Cenvat/Modvat - Inputs ... ... ... ... ..... . submits that no such facility to manufacture to make MS Billets and Rounds converting into components was available at their factory at the time of inspection. Therefore, he submits that the Deputy Commissioner has rightly disallowed the Modvat facility to the appellant company. emsp 3.There is a concurrent finding of the fact that the appellant-company rsquo s factory has no facility to do manufacturing activity at their factory to make the MS Billets/Rounds converting into components or spare parts. emsp 4.I do not find any reason to disagree with the finding of fact arrived at by the authorities below. In view of the above discussions, the appeal deserves to be dismissed. Consequently, I dismiss the appeal. (Pronounced on 12-10-2004)
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2004 (10) TMI 518 - CESTAT, KOLKATA
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... There is no provision in the Rules which allows suo motu credit of any payment which the appellant thinks to be excess. In view of above, I direct the appellant to pay Rs. 8,000.00 as pre-deposit. On compliance, rest of the demand and the penalty is waived till further order. Case to come up for ascertaining compliance and regular hearing on 17-12-2004. (Pronounced in the open Court)
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2004 (10) TMI 517 - CESTAT, KOLKATA
Appealable order - Denial of Cenvat/Modvat credit ... ... ... ... ..... in the aforesaid period of three months, allow it to be presented within a further period of three months. (2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner. rdquo 4.1The letter of the Deputy Commissioner dated 3-3-2001 has communicated the decision for rejection of the declaration for Modvat and vide the letter dated 4-4-2001, the Deputy Commissioner has directed the appellant-company to file appeal against that decision. Both the letters determine the right of the parties and the appellant-company has a statutory right to prefer appeal against this Order before the Commissioner (Appeals). The similar view was taken by the Tribunal in the decision reported in 1992 (59) E.L.T. 477 (T) in the case of Indian Oxygen Ltd. v. Commissioner of Customs. In view of the above, I set aside the impugned Order and remand the case to the Commissioner (Appeals) for decision in accordance with law. Pronounced in the open Court.
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2004 (10) TMI 516 - CESTAT, CHENNAI
Appellate Tribunal - Orders of - Implementation of ... ... ... ... ..... ent has filed any appeal before the Hon rsquo ble High Court at Madras and also she does not have any information as to whether there is any stay of the operation of the order of the Tribunal. Since the impugned orders of the lower appellate authority had been set aside by this Bench, being not legal and proper and in the absence of any stay of the Final order of the Tribunal by a higher judicial forum, the Department is bound to release the goods with consequential relief, if any. I, therefore, in exercise of the power conferred on the Tribunal under Rule 41 of CESTAT Rules, 1982, direct the Commissioner of Customs (Sea Port), Chennai to implement the order of the Tribunal without insisting on Bank Guarantee etc., within a period of 15 days from the date of receipt of this order. Ordered accordingly. The Registry is directed to issue this order as ldquo DASTI rdquo as and when approached by the appellant or the Advocate on record. (Dictated and pronounced in the open Court).
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2004 (10) TMI 515 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Import - Fake DEPB scrip - Demand - Limitation ... ... ... ... ..... ct as a prudent person and make inquiry about the genuineness of the scrip. For having not so acted, the appellants cannot be said to be a bona fide purchaser of the DEPB scrip. Therefore, prima facie, we do not find any case in favour of the appellants. In this context, we may also refer to the ratio of the law laid down in the case of ICI India Ltd. v. CC, Calcutta, 2003 (151) E.L.T. 336, an identical case where DEPB scrips purchased by the assessee were later on found to be forged one and the purchaser was held to be liable for the same. 4. emsp Having no, prima facie, case, we direct the appellants to make pre-deposit of the entire duty amount within eight weeks from today. Failure to comply with this order within the stipulated period, will entail the dismissal of the appeal under Section 129E of the Act without any further reference to them. 5. emsp To come up for reporting compliance and further orders on 17th December, 2004. (Dictated and pronounced in the open Court)
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2004 (10) TMI 514 - CESTAT, MUMBAI
Redemption fine, in lieu of confiscation of second-hand Diesel Engines - Import of Second-hand goods - Appeal - Tribunal’s precedent decisions - Tribunal’s Orders - Reference to Larger Bench
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2004 (10) TMI 513 - CESTAT, KOLKATA
Appeal to Appellate Tribunal - Maintainability of ... ... ... ... ..... Under Section 129A of the Customs Act, 1962, the person who aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order ldquo (a) a decision or order passed by the Commissioner of Customs as an adjudicating authority (b) an order passed by the Commissioner (Appeals) under Section 128A (c) an order passed by the Board or the Appellate Commissioner of Customs under Section 128, as it stood immediately before the appointed day (d) an order passed by the Board or the Commissioner of Customs , either before or after the appointed day, under Section 130, as it stood immediately before that day. rdquo 6.In the present case, no adverse order has been passed by the Commissioner (Appeals) against the appellant, Shri Sachin Mittal. Hence, the appellant, Shri Sachin Mittal has no right to file the present appeal. The present appeal is not maintainable in view of Section 129A of Customs Act. Accordingly, I dismiss the appeal. (Pronounced on 7-10-2004)
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2004 (10) TMI 512 - CESTAT, KOLKATA
Stay of Commissioner (Appeals) Order ... ... ... ... ..... d whether refund arising out of it will be treated in accordance with the time limitation as mentioned under Section 11B. In view of this, the operation of the order of the Commissioner (Appeals) of Central Excise and Customs, BBSR, dated 26-9-2003 is stayed till further orders. Case to come up for Regular Hearing on 5th November, 2004. (Pronounced in the open Court.)
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2004 (10) TMI 511 - CESTAT, KOLKATA
Demand - Limitation - Reversal of Cenvat credit ... ... ... ... ..... as denied the credit amounting to Rs. 95,554/- on the basis that the appellant has reversed the credit voluntarily. It is clear from the above findings of the Commissioner that the Modvat credit availed of by the appellants was inconsonance with the Rules and law. So far as the reversal of Modvat credit of Rs. 95,554/- is concerned, a request was made to the Superintendent of Central Excise, Range V Division, Howrah by their letter dated 25th February, 2002 but no communication was ever sent by the Superintendent to the appellants. The finding of the Commissioner, that the Modvat credit amounting to Rs. 95,554/- were voluntarily reversed by the appellants, is contrary to the facts. Furthermore, a time-bar demand of the duty cannot be confirmed by the Commissioner and the benefit of Cenvat cannot be denied on this basis. Therefore, the appeal deserves to be allowed. 5. emsp Consequently, I allow the appeal with consequential relief to the appellants. (Pronounced in the Court).
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2004 (10) TMI 510 - CESTAT, MUMBAI
Demand - Duty collected from buyers but not deposited with Government ... ... ... ... ..... is shown and charged separately. The provisions of Section 11D say that the amounts which an assessee collects from his customers representing duty of excise is required to be deposited by him to the credit of Central Government. Evidence has to be brought on record to show that there was a collection of certain amount representing duty. No such evidence exists in this case. 7. emsp The Tribunal in the case of Poddar Industrial Corporation v. Commissioner of Central Excise, Patna 2003 (158) E.L.T. 473 (Tri. - Kolkata) dealt with a similar situation. The facts are almost para materia with the present case. The Tribunal in that case following the ratio laid down in National Organic Chemical Industries Ltd. v. Commissioner of Customs 2000 (115) E.L.T. 70 , held that in a case of this type demand under Section 11D cannot be upheld. Following the ratio of this decision and for the reasons given above we reject the appeal of the Revenue. 8. emsp Revenue rsquo s appeal is rejected.
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2004 (10) TMI 509 - CESTAT, CHENNAI
Penalty - Evidence ... ... ... ... ..... ut of the country illicitly. The FERA provisions referred to by both sides show that it was permissible for a person to take or send foreign currencies into, or out of, the country, subject to regulations prescribed under the Act. The Revenue has not shown that the foreign currencies in question were intended to be exported to Singapore in breach of any such regulation and that the appellant was aware of the same. On the other hand, Arasu rsquo s statement relied on by the Revenue contains an averment that the foreign currencies returned by Gani used to be sent to Singapore through passengers within the permissible limit of 10,000 US Dollars. In the circumstances, the appellant cannot be held to have abetted the offence charged against Arasu and others and hence cannot be visited with penalty under Section 114(i) of the Customs Act. 6. emsp In the result, the penalty imposed on the appellant is set aside and the appeal is allowed. (Order dictated and pronounced in open Court)
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2004 (10) TMI 508 - CESTAT, NEW DELHI
Re-adjudication ... ... ... ... ..... payment of CVD on the PU Form, blocks or sheets does not arise can only under the fact that the instant case, no such duty liability has been discharged and therefore for fulfilment of the conditions for exemption under Notification No. 14/92 is not satisfied. rdquo 7. emsp Thereafter, the Commissioner (Appeals) remanded the matter for quantification of duty. In these situations, we find force in the arguments of the appellant that the de novo proceedings in pursuance to the order-in-appeal dated 27-9-1994 is only in respect of quantification of duty. The issue for denial of benefit of notification attained finality in absence of any challenge before the higher forum by the respondents. 8. emsp In the impugned order, the Commissioner (Appeals) allowed the benefit of notification which was not an issue before the adjudicating authority as discussed above, which attained finality. In view of the earlier order-in-appeal, the impugned order is set aside and the appeal is allowed.
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2004 (10) TMI 507 - CESTAT, NEW DELHI
Redemption fine - Quantum of ... ... ... ... ..... ant renewed the LC on 12-12-1998 it was not aware that on the immediately preceding day to the Notification floor price notification had been issued and licence was required for imports below the floor price. 3. emsp The learned DR has submitted that the Commissioner has rightly imposed the redemption fine since the import price was not above the market price minus customs duty. 4. emsp The ceiling mentioned in Section 125 of the Customs Act is the upper limit for redemption fine, while the fine itself is to be fixed keeping in mind the facts and circumstances of the case. The appellant was a regular importer of the item in question as an input. The import has also taken place almost simultaneously with the issue of an order imposing floor price. The margin of profit is Rs. 80,000/-. Taking all these aspects into account, I reduce the redemption fine to Rs. 50,000/-. Appeal is thus, partially allowed by reducing the redemption fine. Pronounced and dictated in the open Court .
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2004 (10) TMI 506 - CESTAT, KOLKATA
Refund claim - Unjust enrichment ... ... ... ... ..... ors the incidence was first passed on to the buyer and then it was sought to be remedied by issuing credit notes, that too at a much later stage. The Commissioner (Appeals) has also observed in his order as Page 2 as follows - ldquo As such the payment of duty incidence by the purchaser does not arise in the instant case in view of the deduction of the value of the goods from the bills. The goods cleared under gate passes after payment of duty has been borne by the appellant for which the refund of duty claimed has not been passed on. As such, the doctrine of lsquo unjust enrichment rsquo as enshrined under Section 12A of the Act will not be applicable rdquo . 4. emsp In the present case the disputed amount of duty has not been collected by the appellant from their buyer and it is not hit by the principles of unjust enrichment. In view of above, I do not find any force in the appeal filed by the Revenue. 5. emsp Consequently I dismiss the appeal. Pronounced in the open Court.
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2004 (10) TMI 505 - CESTAT, NEW DELHI
Cenvat/Modvat - Inputs ... ... ... ... ..... rned by them to the manufacturer after reversing the credit and paying the duty in respect thereof for rectification of the defects. It also remains undisputed that the manufacturer after removing the defects, returned the goods to the respondents without availing any credit. He only gave reference to the invoices of the respondents under which the goods for rectification purposes, were received by him. 4. emsp It is well settled that the Revenue cannot be permitted to travel beyond the show cause notice. Therefore, the notification now sought to be relied upon by the learned JDR before me, cannot be taken note of for having never put to the respondents in the show cause notice for denying them the Modvat credit. I do not find any illegality in the impugned order passed by the Commissioner (Appeals), in the light of the observations made above and the same is upheld. 5. emsp Consequently, the appeal of the Revenue stands dismissed. (Dictated and pronounced in the open Court).
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2004 (10) TMI 504 - CESTAT, CHENNAI
Confiscation and penalty ... ... ... ... ..... poraneous Bill of Entry is ldquo New Crop 1st Grade White Poppy Seeds rdquo . On account of quantity difference also, the value of the goods covered by the contemporaneous import cannot be adopted in this case. The quantity of poppy seeds imported and cleared under the contemporaneous Bill of Entry is only about 34 MTs whereas the quantities imported by the appellants are as high as 173 MTs and 93 MTs. It is also pertinent to note that the values declared by the two importers in respect of the goods identically declared and contemporaneously imported do not show much variation. In the circumstances, there is hardly any reason to reject the declared value in this case. 6. emsp In the result, the impugned orders cannot be sustained and the same are set aside. It is ordered that the goods be assessed to duty on the basis of the transaction value declared by the importers. Appeals stand allowed with consequential reliefs to the appellants. (Dictated and pronounced in open Court).
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2004 (10) TMI 503 - CESTAT, NEW DELHI
Demand - Valuation ... ... ... ... ..... find merit in the submission of the appellant. Sales tax is a permissible deduction from sale price, in order to arrive at the assessable value. The error in the present cases is that on not allowing the deduction of full amounts. The demand on this count is not sustainable. The issue regarding excess collection towards insurance remains settled in favour of the appellant by the decision of the Apex Court in the above mentioned case. Eligibility of bank charges remain decided in favour of the assessee under the old section. There is no difference on this point under the new section also, inasmuch as value has to be determined at the time of removal. In the result, the appeals of the assessee succeed and are allowed with consequential relief, if any. The appeals filed by the revenue pointing out only errors in collection cannot find acceptance in view of the above findings on the issues. Therefore, they are rejected. 4. emsp All the appeals are disposed of in the above terms.
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2004 (10) TMI 502 - CESTAT, MUMBAI
Penalty on clerk in Customs House Agents office ... ... ... ... ..... aid order set aside the penalty. 3. emsp The present appellant is also a clerk in the CHA. The Commissioner of Customs, Mumbai imposed a penalty of Rs. 2 lakhs on him, no less. He is consistent. He observed we quote ldquo Shri Mahendra Kumar Kate (the appellant) and Shri Rajesh Krishna Anjuan (The person on whom a similar penalty was imposed and set aside by the Tribunal) told Paliekara to claim the jeep. Why should they give such advice? They being representative of CHA should have inquired before filing customs documents for clearance of vehicle rdquo . Left to him the Commissioner would impose a penalty on anyone who as much as winked at or shook hands with the store keeper Paliekara. Surely the Commissioner rsquo s reason for imposing a penalty of Rs. 2 lakhs on the appellant to say the least is frivolous. The penalty is set aside for the reasons contained in the Tribunal rsquo s above cited order. 4. emsp The order of the Commissioner is set aside. The appeal is allowed.
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