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Case Laws
Showing 121 to 140 of 571 Records
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2005 (12) TMI 491 - CESTAT, KOLKATA
Cenvat/Modvat ... ... ... ... ..... ted in 2001 (134) E.L.T. 665 (Tri.-LB) (iii) Press Comp International v. CCE reported in 2004 (173) E.L.T. 363 (Tri.-LB). 3. emsp I have heard both sides. I find that the duty-paid character of the goods is not in dispute. The dispute here is that the Modvat credit had been taken on the original copy of the invoice. I find the case of the assessee was pending when the Notification No. 7/99-C.E. (N.T.) dated 9-2-99 was issued. I find that the Notification No. 7/99-C.E. (N.T.) dated 9-2-1999 and the Circular No. 441/7/99-CX, dated 23-2-1999 have clarified that once the duty paid nature of the goods is established and it has also been clarified that the particulars required in terms of the above Notification are available in the invoices, the other procedural requirements can be waived off. In view of this, I do not find that the grounds taken by the Revenue in its appeal, are maintainable, and accordingly, I reject the appeal filed by the Revenue. (Pronounced in the open Court)
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2005 (12) TMI 490 - CESTAT, NEW DELHI
Cenvat/Modvat - Capital goods ... ... ... ... ..... or the credit. 3. emsp We find that during the relevant period that is January 1999 to February 1999, credit was denied as per the definition of capital goods provided under Rule 57Q of Central Excise Act. The specified goods are used in the factory. We find that M.S. Plates are classifiable under Chapter 73 of the Central Excise Tariff, and all the goods falling under Chapter 73 are not specified goods under the definition of capital goods. In these circumstances, we find no infirmity in the impugned order whereby the credit was denied in respect of M.S. Plates as capital goods. 4. emsp The appeal is dismissed. (Dictated and pronounced in open Court)
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2005 (12) TMI 489 - CESTAT, NEW DELHI
Appeal by Department - Limitation ... ... ... ... ..... ssioner joined at Lucknow, at that time, steps should have been taken for forming the Committee. Therefore, the delay from 1-9-2005 till 25-10-2005 is not properly explained. 3. emsp I have considered submissions made by both the sides. I find that on 1-9-2005 when the Commissioner joined at Lucknow, there was no regular Commissioner at Allahabad and additional charge was taken by the Commissioners of Central Excise, Lucknow. Thus, a Committee could not have been formed. Therefore, the Chief Commissioner finally issued the order on 5-10-2005 that the Commissioner, Kanpur will hold the additional charge of Allahabad Commissionerate for the purpose of reviewing the orders of the Commissioner (Appeals). Thus, I find that, during that period, there was no possibility of forming the Committee. Therefore, the reasons given by the applicants are acceptable. I, accordingly, condone the delay of 49 days in filing the appeal. (Order dictated and pronounced in open Court on 28-12-2005).
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2005 (12) TMI 488 - CESTAT, NEW DELHI
Cenvat/Modvat ... ... ... ... ..... is not distributed. Hence, to my mind interconnecting cable would be a component of turbine. 6. emsp As regards the second issue i.e. control panel, I find that the said item is used for controlling activity of the turbine such as vibration, overheating and maintaining temperature of the turbine. These activities definitely control functioning of turbine, as due to overheating, the turbine may break down. These panels are the requirement for smooth functioning of turbine. To my mind this item also would be a component rather than accessory. 7. emsp In view of above, I find that both the items on which Modvat credit is sought to be denied by the department are components and the turbine would not function without these items, and therefore, they are eligible for Modvat credit. The order-in-appeal, therefore, deserves to be set aside. Accordingly, I set aside the impugned Order and allow the appeal with consequential relief, if any. (Dictated and pronounced in the Open Court.)
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2005 (12) TMI 487 - CESTAT, KOLKATA
Cenvat/Modvat - Declaration - Delay in filing declarations ... ... ... ... ..... ued a Notification No. 7/99-C.E. (N.T.) dated 9-2-1999 and a Circular No. 441/7/99-CX dated 23-2-1999. These Circular and Notification are binding on the lower authorities. In view of this, he submits that the case may be remanded to the lower authority. 2. emsp Heard Shri Y.S. Loni, ld. JDR for the Revenue. He has no objection in sending the case to the lower authority in view of the decisions referred to above. 3. emsp After hearing both sides, I find that the Notification and the Board rsquo s Circular referred to above are binding on the lower authority. The case has been adjudicated by them much latter after the issue of the Notification and Circular referred to above. In view of the above, I find that the matter is required to be re-examined by the lower authority. I remand the matter to the lower authority with direction that the case may be adjudicated after following the principle of natural justice. Appeal is allowed by way of remand. (Pronounced in the open Court.)
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2005 (12) TMI 486 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... ed back and whatever goods, after such sorting and inspection are found to be meeting the standard specification of the customers, the same are returned to the customers on discharging duty, goods which are misprinted or having pinholes or other defects and such are required to be scrapped as waste are cleared as waste/scrap or and are used to manufacture new ingots/foils. Prima facie the assessee has returned the goods cleared by them on payment of duty and this would constitute return of inputs as inputs and remaining quantity has been taken up for further manufacture/remaking. At this prima facie stage, we find no reason to uphold the reversal of credit as arrived and or demands or penalties as arrived at by the lower authorities, by denying them the benefit of the rules. In this view of the matter, we would order full waiver of the pre-deposit requirement under Section 35F of the Central Excise Act, 1944 and stay recovery thereof pending the appeal. (Pronounced in Court.)
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2005 (12) TMI 485 - CESTAT, KOLKATA
Appeal to Commissioner (Appeals) - Limitation ... ... ... ... ..... find that the appellant has sent the appeal to the Commissioner (Appeals), Guwahati. It is immaterial on what date this appeal is sent to the Commissioner, Central Excise, Bhubaneswar. The Consultant submits that the appeal jurisdiction for Balasore Central Excise Division was with the Commissioner, Central Excise, Guwahati at the relevant time. In any case once their appeal has been received in time in the office of Commissioner of Central Excise (Appeals), Guwahati, it is not material what date the appeal is transferred and received by the Commissioner, Central Excise (Appeals), Bhubaneswar. Since their original appeal was received in the office of Commissioner (Appeals) in time, I remand the cases to the Commissioner (Appeals), Bhubaneswar to decide the matter afresh on merits as I do not find any delay in the appeal submitted by the Appellant. The appeal is allowed by way of remand. The Stay application is also gets disposed of accordingly. (Pronounced in the open Court)
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2005 (12) TMI 484 - CESTAT, NEW DELHI
Valuation - Related person ... ... ... ... ..... s related person. These were required to be considered by the lower authority. There is also merit in the appellant rsquo s contention that method adopted is contrary to Rule 5. 7. emsp In the circumstances mentioned above, we are of the opinion that the matter should go back to the original authority for a fresh consideration of the appellant rsquo s contentions on valuation. Therefore, we set aside the impugned order and remand the case to the original authority for a fresh decision on merits. 8. emsp In view of recurring nature of the dispute and since the assessments are of 2000, it is further directed that the original authority shall take up the matter on priority and shall try to complete the adjudication proceeding within three months from the receipt of a copy of this order. The appellants shall file the documents and evidence before the original authority within a week of receipt of a copy of this order. Order dictated and pronounced in the open Court on 21-12-2005
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2005 (12) TMI 483 - CESTAT, NEW DELHI
Demand, confiscation and penalty - SSI unit ... ... ... ... ..... by them inviting confiscation goods or for imposition of penalty. After hearing learned Departmental Representative and going through the impugned order, we find that the original adjudicating authority has accepted the fact of the appellants rsquo sales being much below the exemption limit and the fact that the appellant manufactured the branded goods for the first time. As such, we fully agree with the learned Advocate. That the appellants rsquo own manufactured goods were not liable to duty and branded goods were required to pay duty at the time of clearance of the goods. We also agree with the learned Advocate that in the facts and circumstances of the case, the confiscation of the goods or imposition of penalty was not justified. We, accordingly, set aside the impugned order. However, it is made clear that the duty on the branded goods is required to be paid by the appellant at the time of clearances, if not already cleared. The appeal is disposed of in the above terms.
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2005 (12) TMI 482 - CESTAT, NEW DELHI
Appeal to Appellate Tribunal - Rebate of duty ... ... ... ... ..... om the above it is very clear that if any rebate of excise duty on the goods exported is the question, the appeal against Order-in-Appeal lies under Section 35EE of the Central Excise Act to the Central Government. It is admitted fact that in this case the question is of rebate of duty on the goods exported though belatedly. The case law referred by the learned Advocate does not cover the present matter since the proviso to Section 35B(1) was not brought to the notice of the Hon rsquo ble Tribunal in that case. 4. emsp In view of the above, I find that the appeals of the Appellants are filed before the wrong forum and this Tribunal cannot entertain and dispose off the appeals of this kind. At this stage the learned Advocate submit that he would like to withdraw the appeals so that he can file the appeal before the right forum. The request of the learned Advocate is accepted. Accordingly, both the appeals are dismissed as withdrawn. (Dictated and pronounced in the Open Court.)
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2005 (12) TMI 481 - CESTAT, MUMBAI
Confiscation of goods - Mutilation of goods ... ... ... ... ..... of time at which the importer made the offer of mutilation is relevant, and finding that such offer was made only after the offence had been discovered and that rules had not been made under Section 24 for mutilation of LDPE films imported by Hardik Industrial Corpn., set aside the Tribunal rsquo s order directing mutilation of goods in such a manner that they could be used only for recycling and not for any other purposes, we are of the view that the Commissioner should have permitted mutilation. We, therefore, set aside the impugned orders and direct mutilation of the goods imported by the appellants herein in the factory of the actual users whose names have been indicated by the appellants. On mutilation, the goods shall be chargeable to duty at such rate as would be applicable if the goods have been imported in the mutilated form as per Section 24, viz. as steel scrap. Penalties imposed upon the appellants are also set aside. 6. emsp The appeals are thus allowed as above.
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2005 (12) TMI 480 - CESTAT, NEW DELHI
Cenvat/Modvat - Reversal of credit ... ... ... ... ..... ise Act, 1944. rdquo Again the Tribunal in the case of CCE, JSR. v. Ravi Hi-Tech - 2004 (175) E.L.T. 624 (Tri.-Kolkata) had an identical issue before it wherein it is held that ldquo Cenvat/Modvat - Input and final product denotified from purview of Rule 57A of erstwhile Central Excise Rules, 1944 with effect from 1-8-1997 - Credit availed and utilized on inputs lying in stock and inputs contained in finished goods lying in stock on 1-8-1997 not to be reversed rdquo . From the above two Division Bench decision of the Tribunal it is very clear that the amount of Credit which is lying unutilised in the books of account i.e. RG23 Part II only lapses, there is no provision to demand the duty or seek reversal of the duty lying in stock or finished goods in W.I.P. 5. emsp In view of the above findings the impugned Order of the Commissioner (Appeals) deserves to be set aside. Accordingly I set aside the impugned Order and allow the appeal. (Dictated and pronounced in the Open Court)
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2005 (12) TMI 479 - CESTAT, MUMBAI
Cenvat/Modvat on inputs ... ... ... ... ..... in a case where the inputs are lying in stock and have not yet been utilized in the manufacture of finished product, the credit in respect of such inputs requires to be reversed once the input is de-notified under the Modvat scheme. However, I am unable to allow the applicant Commissioner rsquo s appeal for the reason that there is a contrary decision of the Hon rsquo ble Karnataka High Court in the case of Grasim Industries Ltd. v. CBE and C (Supra) on this very issue and the department s SLP against the same has been dismissed by the Hon ble Supreme Court vide 2004 (170) E.L.T. A306 (S.C.) and subsequently, the department itself has issued a Circular No. 812/9/2005-CX, dated 22-3-2005 implementing the said decision and withdrawing the earlier Circular No. 784/17/2004-CX, dated 30-4-2004 and directing adjudication of pending cases in the light of the Hon ble Supreme Court decision. 3. emsp As such, the department rsquo s appeal is rejected. (Pronounced in Court on 15-12-05)
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2005 (12) TMI 478 - COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE (APPEAL
Refund - Pre-deposit - Interest on interest ... ... ... ... ..... covery of dues, adjustment of refund amounts towards duty liability under order passed by Commissioner (Appeals) even before expiry of three months time due for filing appeal against order of Commissioner (Appeals) is not correct. When specific direction issued by Dy. Commissioner to refund entire amount, the department cannot adjust amount of Rs. 2,78,623/- towards duty liability out of amount due as refund without seeking permission from Tribunal. In light of the above cases, the outstanding dues against the Orders which have been challenged in the CESTAT can not be adjusted without seeking permission from the CESTAT and hence balance amount of Rs. 3,41,625/- is liable to be refunded to the applicant alongwith interest in accordance with the rules from the date of impugned order granting refund. 12. emsp In view of the above, I hereby set aside the impugned order and allow the refund of balance amount of Rs. 3,41,6257/- adjusted against outstanding dues along with interest.
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2005 (12) TMI 477 - CESTAT, MUMBAI
Cenvat/Modvat - Limitation ... ... ... ... ..... 90, so to say, got a fresh lease of life only on 17-7-1997 with the issue of Tribunal rsquo s order. The appellants took credit on the same a month later on 19-8-1997. I am of the view that the action of the appellants is reasonable and I see no violence done to the spirit of Rule 57G(2) by such action. In any case, if the letter of the rule prevents the appellants from taking the credit on their own, this is one of those cases where the Tribunal must step in and allow the appellants to take the credit in the interest of rendering justice which has been denied to the appellants too long for 15 years after the Commissioner (Appeals) passed an incorrect order on 8-10-1990. On top of it, the appellants have been penalized to the extent of Rs. 10,000/- 3. emsp I have, therefore, no hesitation whatsoever in setting aside the impugned orders passed by the lower authorities and allowing the appeal with consequential benefit to the appellants. (Pronounced in open Court on 15-12-2005)
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2005 (12) TMI 476 - CESTAT, NEW DELHI
Kar Vivad Samadhan Scheme (KVSS) ... ... ... ... ..... able to them and the appellants have to proceed in accordance with law by filing the appeal. Without the examination of the final acceptance certificate, will render the appellants with no remedy. In my view the order in appeal dated 3-10-2003 has not considered this aspect. 6. emsp Further, in the appellant rsquo s case in Appeal No. E/907/05, in respect of the same issue the appeal is allowed by way of remand to the jurisdictional Commissioner, Kolkata-V, to pass an appropriate order under KVS Scheme. The said Commissioner rsquo s appropriate order under KVSS has to be awaited before disposing off the appeal of the appellants in this case. 7. emsp In view of the above findings, the order in appeal is set aside, and appeal allowed by way of remand to the appellate authority to examine the issue afresh, after granting an opportunity to the appellants to produce the final certificate under KVS Scheme. Appeal allowed by way of remand. Dictated and pronounced in the Open Court .
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2005 (12) TMI 475 - CESTAT, CHENNAI
Confiscation and Penalty - Mis-declaration ... ... ... ... ..... r penalty was imposed on the CHA also. Shri T.S. Kamalakannan and his advocate apparently promised to submit detailed argument notes to the adjudicating authority, but neither of them submitted any such notes. In the circumstances, it was held, Shri T.S. Kamalakannan played a major role in the attempt to misdeclare the goods and clear the same without payment of duty. This finding is also far from tenable inasmuch as there is no misdeclaration, nor any explanation of ldquo major role rdquo in the impugned order. Nothing has been brought out to show that the CHA dealt with the Mobile Phones in a manner which rendered the goods liable to confiscation. In the circumstances, no penalty could have been imposed on him. 6. emsp In the result, the order of the Commissioner confiscating the ldquo Mobile Phones with accessories rdquo and imposing penalties on the appellants is set aside. The appeals stand allowed. (Operative part of the order was pronounced in open court on 13-12-2005)
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2005 (12) TMI 474 - CESTAT, NEW DELHI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... f Central Excise Rules, 2002. 5. emsp I find that the invoice which are issued by the first stage dealer to the respondents are an invoice issued under Rule 7. These invoices have been issued on the basis of the additional duty paid by the manufacturer at his end to the Govt. It is not in dispute that the respondents had procured the goods from the first stage dealer and part of the duty as paid earlier was also allowed as a credit to them. It would be mis-carriage of justice if the duty paid on he same goods by the manufacturer is not allowed, as a credit, to the respondent for the only reason that the invoices which are issued by the first stage dealer could be termed as supplementary invoices. The duty amount paid second time by the manufacturer is legitimate right of the respondent for availment of benefit. In view of the above situation, I find that the order-in-appeal dated 10-12-2003 does not deserve any interference. Appeal dismissed. Order dictated in the open Court.
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2005 (12) TMI 473 - CESTAT, BANGALORE
Demand - Annual capacity of production ... ... ... ... ..... eclared quantity of 6703.2868 metric tonnes. Similarly, in the case of 16 rdquo mill the ACP works out to 5941.5230 metric tonne as against 6626.2985 metric tones declared by the appellants. Further, the technical expert made it clear that it was not possible for him to say whether the BHEL motor was connected to finishing stand No. 6 to 16 rdquo mill either permanently or temporarily. If the report of the technical expert is followed, the demand of duty cannot be sustained. It appears that the adjudicating authority has completely ignored the above findings of the technical expert, especially the fact that the ACP works out to less than what has been declared by the appellants. In these circumstances, the order of the adjudicating authority ignoring the directions of the Tribunal is bad in law. Hence, we set aside the same with consequential relief to the appellants. The appeals are allowed. (Operative portion of the Order was dictated in open court on conclusion of hearing)
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2005 (12) TMI 472 - CESTAT, NEW DELHI
Production capacity based duty - Determination of ... ... ... ... ..... ) to Section 3A of the Act. With a view to safeguard the interest of revenue, the learned counsel for the appellant has stated that the appellants will deposit Rupees Twenty five lacs only, within eight weeks from today with the Commisioner for reconsideration of the matter pursuant to this order of remand. 8. emsp We accordingly set aside the impugned order and direct that on the appellants rsquo depositing Rupees twenty-five lacs within eight weeks from today, the Commissioner will hear the matter afresh and after giving an opportunity of hearing to the appellants take an appropriate decision thereon in accordance with law and in light of the observations made in this judgment, expeditiously, preferably within two months from the date of appellant rsquo s depositing the aforesaid amount of Rupees twenty-five lacs. This appeal is accordingly, allowed. The stay application stand disposed of in view of this order allowing the appeal. (Pronounced and dictated in the open Court)
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