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Case Laws
Showing 121 to 140 of 497 Records
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2005 (6) TMI 454 - CESTAT, NEW DELHI
Confiscation - Misdeclaration ... ... ... ... ..... ed that these are polished marble slabs and in the second test report, it is clarified by I.I.T. that the sample is lime stone partially transformed into marble. Therefore, in both the test report nowhere it is mentioned that the sample is polished marble. In view of these circumstances we find that the allegation in show cause notice is that the appellants made import of polished marble is not sustainable. The Revenue rsquo s contention of mis-declaration in respect of quantity of goods by the appellants is also not correct. The total quantity imported by the appellants is 40 Cubic Mtrs. of marble stone in 8 containers and only quantity which as per the Revenue in excess is 1.67 Cubic Mtrs. We find that quantity is insignificant in terms of total quantity imported and the marble in question is not cut evenly. In these circumstances we find that the impugned Order is not sustainable, hence, set aside. Accordingly appeal is allowed. (Dictated and pronounced in the Open Court.)
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2005 (6) TMI 453 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... xtiles and Textile Articles) Act by resorting to ad valorem valuations, of Embroidered Fabrics, when such fabrics discharge basic duty under Compounded Levy Scheme and on a prime facie consideration of the law laid down by the Apex Court in the case of Venus Castings 2000 (117) E.L.T. 273 (S.C.) para 12 thereof, the demands as made may not be upheld. Full waiver and stay is therefore called for to be ordered. 3.Applications disposed ordering accordingly. Both sides at liberty to apply for out of turn hearing in this case. (Pronounced in Court)
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2005 (6) TMI 452 - CESTAT, MUMBAI
Demand - Limitation ... ... ... ... ..... case, against which no appeal was filed by the Revenue, is not tenable. The further argument that the Commissioner (Appeals) has rightly held that the demand is barred by limitation is not acceptable in the light of the Apex Court decision in Serai Kella Glass Works Pvt. Ltd. v. CCE, Patna 1997 (91) E.L.T. 497 (S.C.) , wherein it has been held that no show cause notice under Section 11A of the Central Excise Act is required to be issued for demand as a consequence of finalization of assessment and notice is required to be issued under Section 11A only in the case of short levy, non levy or erroneous refund. The same view has been taken by the Tribunal in Bhansali Engineering Polymers Ltd. v. CCE, Bhopal 2000 (118) E.L.T. 524 . emsp 3.In the light of the above, we hold that the Commissioner (Appeals) was in error in treating the demand raised under the show cause notice dated 2-3-1993 as barred by limitation, set aside that finding in the impugned order, and allow the appeal.
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2005 (6) TMI 451 - CESTAT, NEW DELHI
Smuggling - Confiscation and penalty ... ... ... ... ..... finds corroboration from the cross-examination of Vivek Mishra attesting the witness of the panchnama who has clearly deposed that the appellant was in a state of shock at that time and kept on sitting on a chair in a damp manner. The name of the officer, who recorded the statements of the appellant immediately after the raid at the Customs House, remains undisclosed on the record and he even has not stepped into witness box to contradict the statement of Vivek Mishra, Panch witness. 8.The evidence adduced by the appellant regarding lawful acquisition of gold biscuits from M/s. Dhancholia Sons under the cover of a bill dated 17-3-1998 remains un-rebutted and as such is to be accepted. Therefore, the impugned order regarding confiscation of the biscuits and imposition of penalty on the appellant under Sec. 112(b) of the Act cannot be sustained and is set aside. The appeal of the appellant is allowed with consequential relief as per law. (Dictated and pronounced in open Court)
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2005 (6) TMI 450 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... etermine the value under Section 4 and recover the amounts/reversals effected on such amounts. emsp 3.On perusal of the Boards Instruction No. 643/34/2002-CX., dated 1-7-2002, especially point no. 14, on a prima facie consideration, we find no merits in Revenue rsquo s contention to call for pre-deposit order. We grant full waiver of pre-deposit and stay recovery. Keeping the amounts involved and full waiver granted and we would accept the oral plea made by Revenue to grant out of turn hearing and fix these matters for regular hearing on 21-7-2005. 4.Application disposed of in above terms. (Pronounced in Court)
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2005 (6) TMI 449 - CESTAT, NEW DELHI
Compounded Levy Scheme - Penalty ... ... ... ... ..... tice for payment of a differential duty and with penalty. The adjudicating authority confirmed the duty demand of Rs. 51,096/- with equal amount of penalty. The Commissioner (Appeals) has affirmed that order. 2The duty liability has not been contested by the counsel. The ld. Counsel has prayed for setting aside of the penalty on the appellants, on the ground that the duty has already been paid by the appellants. But, the imposition of penalty in terms of proviso to Rule 96ZP (3) is mandatory, therefore, the contention of the counsel for setting aside the total penalty on the appellants cannot be accepted. However, keeping in view the facts and circumstances of the case and the fact that the entire duty amount had already been paid by the appellants, the penalty is accordingly reduced to Rs. 5000/-. 3.Consequently, the impugned order accordingly stands modified. The appeal of the appellants stands disposed of in these terms. (Dictated and pronounced in open Court on 24-6-2005)
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2005 (6) TMI 448 - CESTAT, NEW DELHI
Demand and penalty - Clandestine removal ... ... ... ... ..... g in the stock. The denatured spirit stored by the appellant, was under the physical control of State Excise department. There is no allegation or proof of the clandestine removal of the goods by the appellants. Under these circumstances, the contention of the appellants that the loss percentage of 0.3 was very marginal and natural. Keeping in view the nature of the goods, deserves to be accepted. Therefore, the confirmation of the duty and penalty appellants is set aside. The impugned order consequently stands reversed and the appeal of the appellants is allowed with consequential relief as per law. (Dictated and pronounced in open Court on 24-6-2005)
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2005 (6) TMI 447 - CESTAT, MUMBAI
Refund - Limitation ... ... ... ... ..... ication is made beyond this time. The ld. Consultant argues that prior to 1991, it is only a person who had paid the excise duty could have applied for the refund and accordingly M/s. Godrej who have paid the excise duty applied for refund. After the amendment Act of 1991, they have come into picture as the lawful claimaints of the refund of excise duty paid. This factor should be taken into consideration for deciding that the application was made within the time prescribed under Section 11B. emsp 2.Heard both sides. It is the admitted fact that the claim is time barred. The ld. Consultant rsquo s argument that since the claim is made by the person who was borne by the duty subsequent to the claim of the person who paid the duty, the time-limit should be considered from the date of first application made by M/s. Godrej, is not acceptable. The provisions of law under Section 11B is very clear on this issue. We, therefore, see no merit in the appeal and is accordingly rejected.
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2005 (6) TMI 446 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Demand ... ... ... ... ..... of his office which is said to be operational 24 hours 7 days a week, the condonation of effecting the same on 17-1-2000 was not condoned. 3 On aperusal of Rule 96ZO(2) it is apparent that no such Control Room of Commissioner is mentioned as the office where the intimation was required to be filed, it mentioning an Assistant Commissioner and copy to Range Superintendent. Prima facie the Commissioner rsquo s reasoning cannot be upheld and full waiver of pre-deposit and stay is required to be ordered and granted. 4.Application disposed of ordering accordingly. (Pronounced in Court.)
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2005 (6) TMI 445 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... y. It is, therefore, difficult, at this stage, to give any wider meaning to the definition of the word lsquo factory rsquo in the context of manufacturing process carried out by the assessee or to the concept of ldquo manufacturing process rdquo in the context of the manufacture of the subject goods. The decisions in Ardeshi H. Bhiwandiwala v. State of Bombay (supra), Grauer and Weil (India) Ltd. v. CCE, Baroda (supra) and CCE v. Rajasthan State Chemical Works (supra) cannot, therefore, assist the applicant. The applicant has, therefore, not made out a case for waiver of pre-deposit. This application is, therefore, rejected. 5.The amount due under the impugned order be deposited within eight weeks from today. On that being done, the matter will come up for final hearing. If not, appeal shall stand dismissed for non-compliance under the provisions of Section 35F of the Act. Compliance to be reported on 26th August, 2005. (Dictated and pronounced in the open Court on 22-6-2005)
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2005 (6) TMI 444 - CESTAT, CHENNAI
Refund - Unjust enrichment ... ... ... ... ..... nd claims. But I note that this is a plea which is missing in the memorandum of appeal. Whatever that be, the law has cast a burden on any assessee seeking refund of duty, to show that his refund claim is not hit by the bar of unjust enrichment created under Section 11B of the Central Excise Act. In the instant case, the appellants have held out their customer rsquo s debit notes as documentary evidence of the burden of duty not having been passed on to the customer. Whether such debit notes are conclusive proof to get over the bar of unjust enrichment is an issue which is no longer res integra. Both the Tribunal rsquo s Larger Bench decisions in Grasim Industries (supra) and S. Kumar rsquo s (supra) are clear to the effect. There is nothing on record to show that the operation of any of these decisions has been stayed by any competent Court of law. emsp 5.For the above reasons, the impugned order is upheld and this appeal is dismissed. (Dictated and pronounced in open Court)
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2005 (6) TMI 443 - CESTAT, MUMBAI
Cenvat/Modvat - Job work ... ... ... ... ..... r Notification 214/86 uses the term ldquo supplier of material rdquo and not seller. Therefore absence or presence of sale to the buyers is of no consequence. The Larger Bench in the case of Maruti Udyog Ltd. 2000 (118) E.L.T. 43 (Trib. - LB) in para 8 have held - ldquo 8 .... The mere fact that BSL are the supplier of the inputs as well as the job worker doing the job of assembling the section on behalf of MUZ should not be reason to deny the benefit of procedure set by the departments. rdquo And on finding that the notice itself admits in para 1(ii) that Modvatable invoices were being issued by the appellant for the plain foil, we find no reason to deny the job work at the appellants rsquo premises. The core issue would be whether the buyers avail credit of plain foil duty or not no material exists to suspect that the said credit was not availed by the buyers. In that view of the matter the duty levy cannot be sustained. 3.Appeals consequently allowed. (Pronounced in Court)
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2005 (6) TMI 442 - CESTAT, BANGALORE
Stay/Dispensation of pre-deposit - Demand ... ... ... ... ..... they have affixed the lsquo HMT rsquo monogram and hence they are not eligible for the benefit of SSI exemption for parts manufactured by them is not correct in terms of several judgments. Heard both sides. Prima facie, we agree with the appellants contention that the appellants are not affixing the brand name or logo of lsquo HMT rsquo on the parts. Their activity of assembly is an independent activity on which no proceedings has been initiated. That activity has been done in various other places at site. There is no affixing of lsquo HMT rsquo brand name on the parts of watches at appellants premises. Hence appellants have a prima facie case in their favour. The stay application is allowed unconditionally granting waiver of pre-deposit of the amounts and staying its recovery as full waiver is given in terms of Section 35F of the Act the matter to be disposed of within 6 months. Matter to come up for hearing on 16th September rsquo 05. (Pronounced and dictated in open Court)
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2005 (6) TMI 441 - CESTAT, NEW DELHI
Appeal - Jurisdiction - Territorial jurisdiction ... ... ... ... ..... ioner (Appeals) by the Appellants. The Commissioner (Appeals) has rejected the appeal on the ground that he has no jurisdiction as goods were seized at Lucknow, but he has not taken into consideration the facts detailed above that the Appellants rsquo factory falls within his jurisdiction. If the clearance of the goods on investigation is found to be clandestine, the authority at Noida will have the jurisdiction to confirm duty, penalty and confiscation of the goods. The place of seizure of the goods in a case of clandestine removal becomes immaterial for the purpose of adjudication. The adjudication has to take place at the place from where the goods were cleared. That place, as observed above falls within the jurisdiction of the Commissioner, Noida. Therefore, the impugned order is set aside and the matter is sent back to the Commissioner (Appeals) for deciding the appeal of the appellants on merit after hearing them, as per law. (Dictated and pronounced in the Open Court.)
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2005 (6) TMI 440 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... the inspection report of the Superintendent and why was it not relied? was not explained. (iv) A fine genuine charitable organisation which is doing wonderful work even after cessation of obligations under the notification and the free services provided by them to the poor and needy was acknowledged and treatment like an unscrupulous business organisation was not called. However liberty was granted to readjudicate the case. emsp 3.Revenue wants the stay of operation of this order of CC (Appeals) since they find it to be not legal, correct or proper and submit that convenience is in favour of the department. We find no merits in ordering the stay of an order passed with liberty to readjudicate explain and the delays after supply of the documents reports etc., as observed by the ld. CC (Appeal). No purpose will be served by staying the operation of the said order, by invoking the inherent powers of this Tribunal Stay Application stands disposed as rejected. Pronounced in Court.
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2005 (6) TMI 439 - CESTAT, NEW DELHI
Demand - Cenvat/Modvat ... ... ... ... ..... 000. No remission of duty on the damaged finished goods, is legally available to the Respondents. Even the learned Counsel has conceded this fact and given up claim for remission of duty in respect of the finished goods, during the course of arguments. Therefore, impugned order in this regard is reversed, and duty demand of Rs. 15,742/- is confirmed against the respondents without penalty as the imposition of the same is not warranted by the facts and circumstances of the case. 3.The duty demand in respect of damaged inputs with penalty is not legally sustainable, as the Respondents had paid appropriate duty, in terms of the Rule 57-I (as amended) and this payment has been accepted by the Commissioner (Appeals) as correct payment under the law. Therefore, the impugned Order in this regard is upheld. 4.In the light of discussion made above, the impugned Order accordingly stands modified. The appeal stands disposed of in above terms. (Dictated and pronounced in the open Court.)
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2005 (6) TMI 438 - CESTAT, CHENNAI
Penalty - Imposition of ... ... ... ... ..... dgement as required under Rule 57-S(7). The impugned penalty is under Rule 173Q which had two clauses viz. (bb) and (d) under sub-rule (1), which are relevant for the present purpose. While Clause (bb) contemplated imposition of penalty on manufacturers or dealers contravening any of the provisions contained in the Modvat Rules, Clause (d) contemplated penalty on those contravening any of the provisions of the Central Excise Rules, 1944 (which included the Modvat Rules also) with intent to evade payment of duty. In the facts of this case, both these provisions should be read together, whereby it would be found that only a contravention with intent to evade payment of duty could be visited with penalty. In the instant case, no such ulterior intent was found by any of the lower authorities. Hence, imposition of penalty on the appellants under Rule 173Q was not warranted in this case. The penalty is vacated and the appeal is allowed. (Order dictated and pronounced in open Court)
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2005 (6) TMI 437 - CESTAT, CHENNAI
Refund - Return of goods to factory ... ... ... ... ..... of them are not of the same class. Hence the Commissioner (Appeals) has erred in placing reliance of the said case law. rdquo The decision in Orissa Cement (supra) holding different goods falling under T.I. No. 68 of the old Tariff as goods of the same class cannot be strictly applied to the new Tariff period. Moreover, that decision did not take into account the question whether grinding of bricks into mortar amounted to any of the processes specified under Rule 173L(1). emsp 5.In the result, it is held that Rule 173L is not applicable to the refund claim in question and hence the respondents are not entitled to claim refund of the duty, which they originally paid on the spare parts. It was open to them to take Modvat credit of that duty and utilise the same for payment of duty on the pump. On the facts of the case, no alternative remedy was available to them under Rule 173L. The impugned order is set aside and this appeal is allowed. (Dictated and pronounced in open Court)
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2005 (6) TMI 436 - CESTAT, BANGALORE
Defence purpose goods - Exemption
... ... ... ... ..... absurd on the face of it. If the Certificate is unacceptable, then suitable reference should be made to the CBEC for clarification. The action of the Departmental Authorities in ignoring the Certificates issued by ISRO is not correct. The Bombay High Court, in the case of Bombay Chemicals Pvt. Ltd. v. Appellate Collector of Customs - 1990 (49) E.L.T. 190 (Bombay), has held that the Certificates granted by Director General of Technical Development or Director of Industries under the Notification is binding and conclusive and the Department is not empowered to question such Certificates. The learned Advocate produced enormous literature in connection with rocket propulsion to impress upon the Bench that the fuel for rocket propulsion is a very essential sub-system. In any case, we do not find any merit in the impugned Orders-in-Original. Hence, we allow the appeals with consequential relief. (Operative portion of this Order was pronounced in open Court on conclusion of hearing)
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2005 (6) TMI 435 - CESTAT, MUMBAI
Cenvat/Modvat - Capital goods ... ... ... ... ..... Larger Bench decision in the case of Jawahar Mills Ltd. v. Commissioner of Central Excise, Coimbatore - 1999 (108) E.L.T. 47, which has been upheld by the Apex Court and for the reason that the goods falling under sub-heading 84.18 (under which heading liquid chiller falls) was excluded from the coverage of credit as capital goods only from July, 1996 while in the present case there is no dispute that liquid chiller and other two items were received prior to 23-7-96 and it has been held by the Tribunal in case of M/s. Shri Srinivas Frozen Foods v. Commissioner of Central Excise, Hyderabad - 2002 (149) E.L.T. 604 that the date of receipt is relevant for the purpose of determination of eligibility to credit under Rule 57Q. emsp 3.In the light of the above discussions, we hold that there is no reason to interfere with the order of the Commissioner. We accordingly, agree with the same and reject the appeal. The cross-objection filed by the respondents are disposed of accordingly.
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