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Case Laws
Showing 121 to 140 of 559 Records
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2003 (11) TMI 530 - CESTAT, MUMBAI
EXIM - Special licence - Synthetic flavouring essence - Classification ... ... ... ... ..... ng 330290.02 as synthetic essential oils also cannot be accepted. Note 2 to the Chapter, which confines the expression ldquo odoriferous substance rdquo in 33.02 only to substance of Heading 33.01 and to odoriferous constituents isolated from this substance or synthetic aromatic substance does not lead to the conclusion that the goods are essential oils. Heading 33.01 is itself a note clearly provides for consideration as odoriferous substance for goods other than essential oils alone. The appellant has not disclosed the ingredients of the product nor come to a clear conclusion. In fact the letter from the Hertz Flavours GmBH the supplier refused to disclose the ingredients on the ground that it is a trade secret. The copy of the gas chromatograph products by the appellant does not necessarily support its case. The appellant rsquo s contention that the goods are covered by the licence is not acceptable. 5. emsp We, therefore, find no ground for interference. Appeal dismissed.
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2003 (11) TMI 529 - CESTAT, KOLKATA
Confiscation and penalty - Smuggled goods - Stay/Dispensation of pre-deposit - Absolute confiscation
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2003 (11) TMI 528 - CESTAT, KOLKATA
Appeal - Limitation - Condonation of delay ... ... ... ... ..... extent so as to incapacitate him from giving directions to his employees or the lawyer to file the appeal. We also note that right from the beginning i.e. from the import of the goods, filing of bill of entry to the Assessment Stage, one Shri Gurvinder Singh, Power of Attorney Holder of the applicant/appellant company, was the concerned person and Shri Anil Handa whose illness has been made the basis for condoning the delay, was nowhere in picture. We also note that the impugned Order has been passed by the Commissioner on the statements made by the said Gurvinder Singh accepting the undervaluation of the imported goods and giving an undertaking that they are ready to pay extra duty and penalty that may have been imposed upon them. 3. emsp In view of the foregoing, we do not find any justification for condoning the delay in filing the appeal. Accordingly, the Miscellaneous Application is rejected. Inasmuch as the delay has not been condoned, the appeal also stands dismissed.
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2003 (11) TMI 527 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... ification of the goods and the goods, in question, were not covered by the amended Rule 57Q. He contended that the Rule as amended by Notification No. 14/96 dated 23-7-1996, cannot be made applicable to the capital goods received by them up to June, 1996, during which period, all the goods in question, were covered by the definition of capital goods as given in Explanation 1 of Rule 57Q of Central Excise Rules. 3. emsp Opposing the prayer, Sh. P.M. Rao, learned DR, reiterated the grounds contained in the impugned order. 4. emsp We have considered the submissions of both the sides. Prima facie, the stand taken by the applicants that the Notification dated 23-7-1996 cannot be made applicable to the capital goods received prior to that date, appears to be correct. The applicants have, thus, made a strong prima facie case in their favour. We, therefore, stay the recovery of entire amount of duty during the pendency of the appeal, which is posted for regular hearing on 19-12-2003.
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2003 (11) TMI 526 - CESTAT MUMBAI
Confiscation of goods - Smuggled goods ... ... ... ... ..... Brilliant Traders is fictitious and obtaining bills from fictitious traders would be obtaining smuggled goods would be on a presumption. In any case, just because M/s. Brilliant Traders are not located by the officers subsequently and M/s. Murugan rsquo s statement of sales to M/s. Brilliant Traders are not even questioned and enquired leads one to conclude that ineffective incomplete enquiries are being made the reasons to confiscate the goods. That cannot be approved. The case law of D. Bhoormull 1983 (13) E.L.T. 1546 (S.C.) AIR 74 SC 859 by Revenue will not be an alibi or a reason not to investigate and be a reason to order confiscation of goods claimed to be licitly imported by producing bills and import duty paid Bills of Entry and imposition of penalties, especially when goods are not covered by Section 123 of the Customs Act, 1962. 5. emsp Consequently the orders of Commissioner (Appeals) are required to be confirmed and appeals dismissed. 6. emsp Ordered accordingly.
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2003 (11) TMI 525 - CESTAT, BANGALORE
Clandestine removal - Proof - Induction furnace ... ... ... ... ..... 23-3-87 is 2.1 MTs and this very capacity was determined by the Commissioner of Central Excise, Hyderabad-III under Induction Furnace Annual Capacity (Determination) Rules, 1997 under his letter No. IV/16/92/97-CX., dtd. 1-10-97. Therefore, there is force in the plea of the appellant that when the capacity of the induction furnace is 2.1 MTs as shown by the manufacturer of furnace in 1987 and the same has been accepted by the Commissioner as on 1-10-97, then how the appellants can produce excess quantity which is not accounted for and which is said to have been cleared clandestinely. 6. emsp Therefore, we are of the opinion that the matter needs re-examination especially in the light of production capacity of the factory and other related documents. Accordingly, the order of the Commissioner is set aside and the matter is remanded back to the Commissioner for re-determining the clandestine production, if any, and its clearance based on the evidence and re-adjudicate the case.
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2003 (11) TMI 524 - SUPREME COURT
Appeal - Pre-deposit amount - Writ petition against order-in-appeal pending - Remand - Justification of
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2003 (11) TMI 523 - CESTAT, BANGALORE
Appeal to Appellate Tribunal - Limitation - Maintainability of ... ... ... ... ..... e. Furthermore, the medical certificate said to be issued by the Doctor at Kuala Lumpur is not clear as it was rightly pointed out by the DR. It was also not properly explained by the Counsel how Shri Chandrashekar has filed an appeal on behalf of his wife being a Proprietrix of the concern. Further, the medical certificate is also not clear about his inhealth and the duration in which he was suffering which compelled him not to leave Malaysia. In view of the various discrepancies, we do not find any justification to condone the inordinate delay. It is well settled position now that to condone the delay not only there must be a cause and cause must be sufficient. In the instant case, neither the maintainability of the appeal has been explained nor sufficient cause has been shown to condone the delay of 175 days in presenting the appeal before the Tribunal. Accordingly, application to condone the delay is hereby rejected. In the result, appeals are dismissed as barred by time.
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2003 (11) TMI 522 - CESTAT, MUMBAI
Cenvat/Modvat - Registration of depot - Duty paying documents ... ... ... ... ..... -LB) was for invoices issued by a dealer, not a case of invoices issued by a depot of the manufacturer and Rule 57G(3)(b) prescribing registration of depot of manufacturer came only in March, 1997. The denial of credit for new registration of depot in this case is therefore not upheld. (b) Since the invoice No. 105/August, 94 was from factory to depot therefore appellant rsquo s name would not be there. However, the invoice used from depot carries the name of the appellant therefore credit would be eligible. 3. emsp In view of the findings, the order is set aside and appeal allowed with consequential benefit.
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2003 (11) TMI 521 - CESTAT, NEW DELHI
Demand - Returned goods, cleared without payment of duty ... ... ... ... ..... lants had sought extension of time for retaining the said machine in the factory. We observe from the Invoice No. 04, dated 6-4-98 under which the machine was sold to M/s. Fabionix, that the Model No. of the machine is the same 206 and the S. No. is also the same. The Revenue has not succeeded in rebutting the submissions made by the learned Advocate that the other number M1030 and M1107 are the purchase Order number allotted by the selling agent on receipt of Purchase Orders. The mere fact that certain features of the machines have been removed will not make it a new machine as it remains a Punch Press machine. We also agree with the learned Advocate that it was not a mandatory requirement under the proviso of Rule 173H of the Central Excise Rules, 1944 that the goods, after repairing or reconditioning or after subjected to any similar process, be sent to the same person from whom the goods were received back. We, therefore, set aside the impugned Order and allow the Appeal.
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2003 (11) TMI 520 - CESTAT, MUMBAI
Cenvat/Modvat - Declaration not filed ... ... ... ... ..... ing the finding - ldquo The said assessee have filed declaration under Rule 57G on 20-3-86 for availing Modvat credit specifying various inputs to be used by them for manufacture of the final products. In addition to the said declaration they separately mentioned in the letter dated 20-3-86 other six inputs which were exempted from duty. rdquo In this view of the matter, it cannot be said that for the six inputs mentioned then exempted no declaration was filed. There is no specific proforma for the declaration or a prohibition for declaring an exempted product as an input. The credit however would be eligible only if duty has been paid on such inputs. In this case the said six inputs were duty paid receipts after 1-4-86. Credit on such duty paid invoices therefore cannot be denied for these six inputs. 3. emsp In view of the findings herein, the order of lower authorities are set aside and credit allowed on duty paid invoices for the six inputs. Appeal allowed in above terms.
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2003 (11) TMI 519 - CESTAT, NEW DELHI
Demand - Cenvat/Modvat - Clandestine removal of modvated inputs ... ... ... ... ..... urance, New Delhi. According to the Minutes of this meeting PVC Resin percentage would be 70 plusmn 5 . In view of this the Revenue cannot arbitrarily take 55 as the norm for demanding duty. The Revenue has not succeeded in proving that the Appellants have shown the utilization of PVC resin in excess than what is required as no tangible evidence has been adduced by it. It is settled law that the duty cannot be demanded on conjectures and surmises. The Supreme Court in the case of Oudh Sugar Mills Ltd. v. Union of India, 1978 (2) E.L.T. (J 172) quashed the Order directing the Appellants to pay the additional excise duty on the quantity of sugar allegedly short accounted for holding that ldquo the finding that 11,606 maunds of sugar were not accounted for by the appellant has been arrived at without any tangible evidence and is based only on inferences involving unwarranted assumptions. The finding is thus vitiated by an error of law. rdquo Accordingly we allow all the appeals.
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2003 (11) TMI 518 - CESTAT, NEW DELHI
Stay order - Recalling of - Ex parte order ... ... ... ... ..... pany, etc. and Section 35F of the Central Excise Act is not failing in any of the categories specified under Section 22 of the said Act. 4. emsp We have considered the submissions of both the sides. Nothing has been brought on record by the applicants to prove that the notice for the hearing of the Stay application was not received by them. On the other hand, acknowledgement due received by the Registry from the postal authorities, clearly indicates that the notice was duly received by the Applicants. Their pre-occupation in other affairs does not empower them not to attend hearing before the Tribunal when the stay application filed by them is posted for hearing. Moreover, as submitted by the learned Senior Departmental Representative, the issue has been decided against them by the Hon rsquo ble Rajasthan High Court and Supreme Court has not granted any Stay. In view of this, we do not find any reason to recall our Stay Order dated 9-9-2003. The Misc. application is rejected.
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2003 (11) TMI 517 - CESTAT, MUMBAI
... ...
... ... ..... The appellant, is denying the allegations levelled against him based on the statements of co-accused. 2. emsp Heard both sides. 3. emsp It is an admitted fact that the foreign currency was not seized from the appellants. There was no seizure of any incriminating goods or material during the search of appellant rsquo s business premises. The allegation of being an abetter to smuggling of foreign currency is levelled only on the basis of statements of co-accused. There is a total lack of independent corroboration of the version figuring in the statements of the co-accused. The orders of the lower authorities imposing penalty on the appellants are clearly based on assumptions and presumptions and lack any cogent, tangible or reliable evidence. The same cannot be sustained. 4. emsp Accordingly the penalty imposed on the appellant in the impugned order is set aside and the orders of the lower authorities are modified to the extent above. The appeal is disposed off in above terms.
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2003 (11) TMI 516 - CESTAT, MUMBAI
Cenvat/Modvat - Inputs ... ... ... ... ..... ions. In the first two decisions that the appellant cites different Benches of the Tribunal have held that caustic soda used for cleaning glass bottle which are used to contain beverages to be inputs. If materials used to clean the container is input, there is no reason why similar material used to clean machinery has also not considered to be input. In fact this is the view in the third decision in which it has been held that trichloethylene used to clean filters, used in the manufacture of nylon yarn, is an input because without it, machinery cannot be used for manufacture. The Tribunal in Orient Paper Mills which held that organic surface active used to clean felt would not qualify as input proceeded on the basis that it could not be held like the felts were used directly or indirectly as parts of machinery in paper making. That reasoning will not apply to the facts before me. The appellant was therefore entitled to credit. 5. emsp Appeal allowed. Impugned order set aside.
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2003 (11) TMI 515 - CESTAT, NEW DELHI
Confiscation and penalty ... ... ... ... ..... as also been said in this appeal about the Assistant Commissioner rsquo s enquiry report, dated 8-10-1997. Having acknowledged the document as ldquo enquiry report rdquo , the appellant cannot turn round and say that what is contained in the report is not any finding of facts by the officer. We are also at a loss to understand as to how the non-cross examination of Customs officers by the respondents can be fatal to their case which is otherwise good like a well-knit fabric. 7. emsp In view of our findings, the 21 gold biscuits were not liable to confiscation under Section 111 of the Customs Act and there is no reason to interfere with the decision of the Commissioner to release the goods to M/s. Balaji Enterprises. It goes without saying that, once the goods are held to be not liable to confiscation under the Customs Act, no penalty can be imposed on any of the parties. 8. emsp In the result, we uphold the order of the Commissioner and reject these appeals of the department.
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2003 (11) TMI 514 - CESTAT, NEW DELHI
Benefit of exemption under Notification No. 20/99-Cus. not available. - Natural Justice - Valuation
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2003 (11) TMI 513 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... ommissioner after duly following the procedure noticed that the invoices were issued by a PSU Unit and there was no irregularity in the invoices and hence allowed the benefit of Modvat credit. On appeal, Commissioner (Appeals) has set aside the order and confirmed the demands. 2. emsp In the impugned order, Commissioner (Appeals) has put the task on the appellant for non-maintenance of record by the PSU Unit. The invoices were in order and the appellants cannot be questioned with regard to non-maintainability of account books by PSU, if any. 3. emsp On prima facie consideration I find that the appellant have a strong case. The invoice in order which is in question by the Commissioner (Appeals), it is only the invoice on which Modvat credit is taken and therefore there is ground for waiver of pre-deposit of duty amount and I allow the stay application by granting waiver and stay its recovery till the disposal of the appeal. Appeal to come up for hearing on 13th February, 2004.
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2003 (11) TMI 512 - CESTAT, KOLKATA
Cenvat/Modvat - Inputs used in exempted goods - Reversal of credit ... ... ... ... ..... be used for manufacture of final product cleared during December 1995 to April, 1996 and secondly, on the ground that no records were produced by the appellants. 4. emsp I find that the reversal had to take place Rs. 1,000/- per metric ton, if the appellant had a stock of inputs received prior to 1-4-94. The above fact would be reflected from the records of the appellant company. The fact that such inputs were used at a later stage, cannot be made the ground for denial of the benefit to the appellants. Whatever quantity was received prior to 1-4-94, the reversal in respect of such quantity has to be at the same rate at which, credit was availed by the appellants. In as much as no records were produced before the authorities below. As such, I set aside the impugned order and remit the matter to the original adjudicating authority for verification of the above facts and decide the matter accordingly. Appeal is thus allowed by way of remand. Stay petition also gets disposed of.
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2003 (11) TMI 511 - CESTAT, MUMBAI
Confiscation of vehicle - Penalty on driver ... ... ... ... ..... Others - 1982 (10) E.L.T. 872 (Del.) that once the notice has been issued to the driver, absence of notice issued to the owner within six months is of no consequence. 2. emsp After hearing both sides and perusal of the case records, I find that the question of non-issue of show cause notice to the owner of the vehicle need not be gone into in this case as the Commissioner has also come to a conclusion that the driver of the vehicle carried one copy of the invoice and he was not in position to know whether that was the correct copy to cover the transport of the goods. He has also noted that the duty in respect of the impugned goods has in any case been recovered from the manufacturer. Considering all aspects of the case, I am of the view that the department has not made out a case requiring interference with the impugned order passed by the Commissioner (Appeals) in setting aside the confiscation of the vehicle and penalty on the driver. Department rsquo s appeal is rejected.
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