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Case Laws
Showing 141 to 160 of 491 Records
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2002 (10) TMI 680 - HIGH COURT OF DELHI
Winding up - Circumstances in which a company may be wound up ... ... ... ... ..... ture of moonshine, the Company Court would be empowered to proceed with the Petition even in the absence of an admitted debt. 5. The observations of the Hon rsquo ble Division Bench were made in the context of a civil suit and not of a winding up petition. Myriad defences could be available to the respondent-company in ordinary civil proceedings for recovery, which would be severely hampered if the present petition is continued. I am also not certain that an accidental and mistaken clearance of a cheque in a current account where no overdraft or loan facilities have been allowed, could nonetheless be treated as such. Such a transaction would be sans consideration and hence fall in the genre of unenforceable contracts. In a regular suit, the Petitioner may succeed in proving the presence of consideration, directly or indirectly. 6. In these circumstances, the present petition cannot be entertained. The Petitioner has, however, other remedies which may be availed of. Dismissed.
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2002 (10) TMI 679 - CEGAT, MUMBAI
Natural justice - Show cause notice ... ... ... ... ..... ce under Section 28(1) for recovery of short-levy of duty on the goods cleared under bill of entry No. 485, dt. 26-4-2002. He is free to invoke the provisions of Section 111(m) as also of Section 112(a) in the show cause notice regarding the liability of goods to confiscation and levy of penalty. At his discretion he may include in the show cause notice such liability to confiscation as also the proposal of escalation of the value of the goods imported under bill of entry No. 118 giving the grounds and reasoning. In the alternative, in view of the waiver of the written show cause notice, he may issue a memorandum to the appellant stating the grounds on which such action is proposed to be taken in connection with those goods. 11. emsp In order to prevent damage and deterioration to the goods, we expect the Commissioner to complete the proceedings within two months of the receipt of this order. The appellants are directed to co-operate. 12. emsp The appeal is allowed by remand.
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2002 (10) TMI 678 - CEGAT, NEW DELHI
Modvat/Cenvat on defective plates costlier than final products ... ... ... ... ..... plate shown was Rs. 11,000/- PMT during April, 1996 as is evident from the Invoice No. 66, dated 13-6-1996 of M/s Rajendra Steels and the conversion charges were taken as Rs. 2,000 PMT to Rs. 2,500 PMT, whereas the final product was shown to had been sold at Rs. 11,270/- PMT. Keeping in view these facts and circumstances, the Deputy Commissioner came to the conclusion that the defective plates could not be called inputs for the manufacture of the final products by the appellants and that they had wrongly availed the Modvat credit. The Commissioner (Appeals) has affirmed these findings. I do not find any sufficient cause to disagree with the findings of both the authorities below, especially when there is nothing on the record to falsify the same. Therefore, the impugned order passed by the Commissioner (Appeals), in my view, is perfectly valid and free from legal infirmity. 5. emsp In view of the discussion made above, the impugned order is upheld and the appeal is dismissed.
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2002 (10) TMI 677 - CEGAT, BANGALORE
Modvat/Cenvat - Procedural lapse - Modvat on input - Lubricating oil is an eligible input ... ... ... ... ..... of description was given with reference to the switch gear and its use in the sub-station but the same has not been considered. Shri Narasimha Murthy, DR pointed out that it is not clear whether the item silicon carbide crystal was declared under 68.01 or under 69.01 since there is a discrepancy with reference to the Show-cause notice as well as in the impugned order. The Counsel referred to the copy of the declaration filed by the party which clearly indicates that item in question was declared under 69.01. In view of this there was no justification to deny the Modvat credit on the ground that correct heading was not given or on the procedural lapse if any while considering the eligibility of Modvat credit. Accordingly, the appellants are eligible to avail Modvat credit on capital goods. Time and again it has been held by the Tribunal that procedural lapse if any should not come in the way of denial of substantial justice. Thus this appeal is disposed of in the above terms.
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2002 (10) TMI 676 - CEGAT, NEW DELHI
Demand - Clandestine manufacture and removal ... ... ... ... ..... of affairs regarding what they manufactured in their factory and the real value of such equipment from the Central Excise authorities by preparing two sets of documents showing false values for the items covered by them. Originally duty was paid only in respect of value of ldquo panel frames rdquo which constituted only small portion of the value of the goods actually manufactured and cleared. Thus, deliberate fraud was committed on the Central Excise authorities. 10. emsp In the above noted facts and circumstances, no fault could be found in the findings reached in the impugned orders or the duty demand, confiscation and penalty. Duty demand has been made after allowing deduction at reasonable percentage towards post-manufacturing activities, namely, erection of the goods at site. The penalties imposed are also very reasonable viewed against the legal provisions on the same and the gravity of the offence. 11. emsp We find no merit in the appeals. They fail and are rejected.
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2002 (10) TMI 675 - CEGAT, BANGALORE
Modvat/Cenvat - Modvat on capital goods ... ... ... ... ..... l before the Commissioner (Appeals). The Commissioner vide impugned order allowed the credit observing that the generating sets irrespective of any restriction with regard to their capacity are eligible to the Modvat credit in terms of explanations 1(c) to Rule 57Q(1) of the Central Excise Rules, 1944. Explanation (1)(c) to Rule 57Q (1) reads as under ldquo moulds and dies, generating sets and weigh bridges used in the factory of the manufacturer rdquo hellip .. 5. emsp Further I find that on the same analogy, the Tribunal has decided the issue as per Order No. 1352/02 in Appeal No. 3323/98 in the case of CCE v. JOICL Ltd., holding that transformer of 30 KVA capacity is eligible for benefit of Modvat Credit in terms of Rule 57Q of the Central Excise Rules, 1944. In the facts and circumstances and taking into consideration of the ratio of the aforesaid decision, I do not find any infirmity in the impugned order. In the result appeal filed by the Department is hereby dismissed.
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2002 (10) TMI 674 - CEGAT, KOLKATA
Redemption fine and personal penalty - Quantum of - Misdeclaration ... ... ... ... ..... knowledge about the incorrect import. We are fortified in our views as regards the conduct of the importer, as we find that the incorrect goods were detected on Customs examination on the first check of bill of entry, prior to finalisation of the assessment. The importer did not care to inform the Customs about the incorrect shipment and/or to make their request for export, which was delayed. The very fact that the importer was pleading before the Commissioner to clear the goods with the plea of re-shipment and/re-export being made, was only a ploy to cover up their liability of confiscation and penalty to be arrived at in this case. We find that the redemption fine and the penalty as imposed, are inadequate in this case, when this conduct of the importer has been established. However, there is no appeal by the Revenue against enhancement of the redemption fine and the penalty. We, therefore, confirm the redemption fine and penalty as imposed. Appeal is dismissed accordingly.
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2002 (10) TMI 673 - CEGAT, NEW DELHI
Demand - Clandestine removal ... ... ... ... ..... demand of duty in this case is even before the provisions of Section 11AC had came into force. M/s. RECL have however not apportioned the amounts which would represent the duty liable to be realised from them before these provisions came into operation. This fact would however call for reduction of penalty on them. 12. emsp Consequently, we uphold the amount of the demand of Central Excise duty confirmed on the appellants, M/s. RECL but however penalty imposed on them is reduced to Rs. 1.0 crore (Rupees one crore only) under Section 11AC. The penalty of Rs. 10 lakhs imposed on them under Rule 173Q is upheld. The amounts of penalties imposed on other appellants are reduced to the amounts as follows (i) Sh. B.D. Agarwal, V.P. (Comml) Rs. 1.5 lakhs (Rs. One lac and fifty thousand only) (ii) Sh. A.K. Jain, V.P. (Production) Rs. 1.5 lakhs (Rs. One lac and fifty thousand only) 13. emsp But for the above relief, all the appeals otherwise fail and the same are accordingly dismissed.
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2002 (10) TMI 672 - CEGAT, KOLKATA
Valuation, clandestine removal - Demand - Clandestine removal - Confiscation - Penalty ... ... ... ... ..... the deposit of Rs. 77,000.00 (Rupees seventy-seven thousand) at the time of release of the seized goods found in excess over the RG-I balance, was only for the duty-liability on the appellants. The goods are definitely not accounted for and there is corroborative evidence arrived at and confirmed that clandestine removals were being effected. Therefore, the confiscation and the security deposit as ordered, is upheld. However, no duty can be demanded once again on the seized goods which were provisionally released on payment of duty. 5. emsp Therefore, as regards the goods found to be removed clandestinely, redetermination of duty may be done as per the MRF decision. The penalty under Section 11AC is, thereafter to be reduced to 25 of the duty to be determined as per the MRF formula. Consequential excess payment, if any made by the appellants over and above the determination as arrived at in this case, should be refunded to the appellants. Appeal is disposed of in above terms.
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2002 (10) TMI 671 - CEGAT, KOLKATA
Confiscation - Export, illegal export ... ... ... ... ..... reported to be 4-5 K.M. away from the border and as per the appellant there is a river flowing between the two countries at that area and as such it was not possible for the Masur Dal to cross over the river in a truck, there is no direct evidence of any attempt by the appellant to export the Dal to Bangladesh and the circumstantial evidences referred to by the lower authorities are not sufficient enough to even create doubt against the appellant. I also note that the appellant has claimed ownership immediately after the date of the seizure. The truck driver had also named the appellant as the owner of the goods. The appellant has also tendered a statement before customs officers. In these circumstances it is not understood as to why the show cause notice was not served upon him. 6. emsp In view of the foregoing discussions I find no merits in the order passed by the authorities below and set aside the same. Appeal is thus allowed with consequential relief to the appellants.
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2002 (10) TMI 670 - CESTAT KOLKATA
Smuggling, attempt to export illegally - Confiscation, conveyance - Appeal ... ... ... ... ..... trolley loaded with chana seized by Raxaul Customs, belongs to him. The seizure of the four trucks at lsquo No Man rsquo s Land rsquo have to be adjudicated separately on the basis of the evidence available in those cases. It cannot, ipso facto, lead to the conclusion that 360 bags of Urad Dal seized by the Officers at a place away from the border and meant for the first appellant rsquo s godown, were to be further exported to Nepal. As such, I find no justification for confiscation of the same or for imposition of personal penalty upon the appellant, Shri Ram Binay Kumar. Accordingly, I set aside the impugned order insofar as the same pertains to the first appellant and allow his appeal with consequential relief to him. 6. emsp Inasmuchas the main appeal has been allowed, there is no justification for confiscation of the truck belonging to the second appellant, Shri Satnam Singh. Accordingly, I order his truck to be released. Both the appeals are disposed of in above manner.
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2002 (10) TMI 669 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... lly considered the rival submissions. The question as to what is the date of payment of duty, is debatable and could be considered only at the time of hearing of the appeals. The issue as to whether it is the provision of Sec. 15(1)(b) or 15(1)(c) which will govern the case will also be gone into at the time of final hearing. However, we see force in the submission regarding non-contravention of Sec. 111(j) and consequent penalty under Sec. 112 as the goods have been removed with the permission of the proper officer. Having regard to the above as well as to the fact of payment of entire demand including the disputed duty demand of Rs. 36.23 crores, and also noting that interest of Revenue are safeguarded by having in its custody the goods of EOL worth Rs. 73 crores, we are of the view that no further deposit should be called for from the applicants. We, therefore, waive the pre-deposit of penalties imposed on all four applicants and stay recovery thereof, pending the appeals.
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2002 (10) TMI 666 - CEGAT, CHENNAI
Demand - Limitation - Modvat/Cenvat - Suppression of facts ... ... ... ... ..... ss has been filed with the department in November, 1979 itself which clearly disclosed the formation of HCL of 30 to 33 concentration and that the other materials are also produced. It shows about the correct manufacture and entries which have been checked by the Inspector of Central Excise. Therefore, it cannot be said that department was not fully aware of the manufacturing process and the assessee had suppressed any material facts with an intention to evade duty. There has been scrutiny of documents on several occasions and it is only at a later date, the department intended to change their view regarding tariff classification. The Commissioner has duly examined the matter and clearly upheld the assessee rsquo s contention that there was no mis-declaration, mis-representation or suppression of material facts in the matter with an intention to evade duty. The order is legal and proper order which does not require any interference. Hence we reject the Revenue rsquo s appeal.
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2002 (10) TMI 656 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... the period July, 1999 to May, 2000 (the period involved in the present case is August, 1995 to May, 2000 and the show cause notice is dated 20-6-2000) we are of the view that no prima facie case for waiver has been made out - the ld. Counsel is not able to show any decision of the Tribunal or High Courts/Supreme Court that even in the case of availability of particulars of the comparable goods, Rule 6(b)(ii) of the Valuation Rules will have to be followed. Keeping all the aspects in view, we direct pre-deposit of an amount of Rs. 15 lakhs (Rupees fifteen lakhs) towards the duty demand within the normal period of limitation and on such deposit within a period of eight weeks from today, pre-deposit of balance amount of duty and penalties shall stand waived and recovery thereof stayed pending the appeals. Failure to comply with the direction shall result in vacation of stay and dismissal of appeal of the company without prior notice. 6. emsp Compliance to be reported on 27-1-04.
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2002 (10) TMI 654 - CEGAT, NEW DELHI
Appeal - Limitation - Condonation of delay ... ... ... ... ..... ained. He should have decided the prayer of the appellants for the condonation of the delay taking into account the totality of the facts and circumstances, and thereafter the appeals of the appellants on merits, in accordance with law. The filing of the misc. applications by the appellants before the Tribunal for implementing its own order, out of which the refund claim has arisen, did not prevent the Commissioner (Appeals) from dealing with the refund claim of the appellants on merits, especially when the Deputy Commissioner had rejected the refund claim after passing the detailed order. 5. emsp In view of the discussion made above, the impugned order of the Commissioner (Appeals) is set aside and the matter is sent back to the Commissioner (Appeals) to decide the condonation of delay in filing the appeals by the appellants in accordance with law and thereafter the appeals after hearing both the sides. 6. emsp As a result, both the appeals are thus allowed by way of remand.
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2002 (10) TMI 653 - CEGAT, KOLKATA
Order - Appellate order ... ... ... ... ..... uch the said order had seal of approval by the appellate authority and it was not open to the Commissioner (Appeals) to enhance the penalty subsequently and by modifying the said order of imposition of personal penalty by Additional Commissioner. I find that the said order was also-challenged by the appellant before Commissioner (Appeals) and the appeal was disposed of vide his order-in-appeal dt. 12-6-2000. In the said order the appellate authority held as - ldquo Accordingly the order-in-original is upheld and the appeal is rejected rdquo . Once the order passed by the lower authorities is confirmed by the Commissioner (Appeals), the same got merged with the order-in-appeal of the Commissioner (Appeals) and as such the quantum of personal penalty of Rs. 5,000/- (rupees five thousand) was confirmed by his earlier orders. In these circumstances he was not justified in enhancing the penalty. As such I set aside the impugned order and allow the appeal with consequential relief.
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2002 (10) TMI 650 - CEGAT, KOLKATA
Invoice - Cancellation of Invoices - Penalty ... ... ... ... ..... n them for non-intimation within 24-hours. There is also no evidence on record to show that the appellants had cleared the goods under the cancelled invoices. We also note that the requirement of intimation within the period of 24 hours in terms of the provisions of Rule 173G(2)(vii) applies only when debit entry in respect of the invoices required to be cancelled, had already been made by the assessee. Inasmuch as in the present case, facility of making debit entries at the end of the week, was extended to the appellants, the invoices in question were not debited by the time when they were cancelled and as such, intimation was not required to be given. The appellants have admittedly filed the lists of cancelled invoices with the RG-12 returns. In these circumstances, there is no justification for imposition of penalty upon the appellants herein. 5. emsp In view of the foreging, we set aside the impugned Order and allow the appeals with consequential relief to the appellants.
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2002 (10) TMI 649 - CEGAT, NEW DELHI
Redemption fine and penalty - Quantum of - Non-accountal of goods ... ... ... ... ..... o ordered confiscation of the seized goods with option to get the same redeem on deposit of Rs. 16,325/-. That order of the adjudicating authority had been affirmed by the Commissioner (Appeals). 3. emsp The ld. Counsel has not contested the impugned order on merits. He has prayed for the reduction in the redemption fine and the penalty on the ground that the lapse on the part of the appellants in not recording the goods in the statutory record, was not deliberate, but due to heavy work. The duty liability had already been accepted and discharged by the appellants. I have gone through the records and in my view the prayer of the Counsel deserves to be accepted. Keeping in view the facts and circumstances of the case, the redemption fine is reduced to Rs. 15,000/- and so also the penalty to that much amount i.e. Rs. 15,000/-. Except for this modification, the impugned order of the Commissioner (Appeals) is upheld. The appeal of the appellants stands disposed of in these terms.
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2002 (10) TMI 648 - CEGAT, KOLKATA
Appeal - Limitation ... ... ... ... ..... ers were handed over for filing the appeal. 3. emsp Shri K.K. Banerjee, ld. Advocate appears before me and submits that papers were given to them by the appellants on 25-4-2000, for filing the appeal before 13-5-2000. However, the papers were mis-placed in his chamber and that is how the delay has occurred. 4. emsp In view of the above explanation, I condone the delay of 22 days for filing the appeal before Commissioner (Appeals). Inasmuch as the appellate authority has not decided the case on merits, I set aside the impugned order and remand the matter to him for decision on merits. Appeal is thus allowed by way of remand. Stay Petitions also get disposed of.
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2002 (10) TMI 647 - CEGAT, NEW DELHI
Modvat/Cenvat - Input - Ship breaking - Penalty ... ... ... ... ..... missioner (Appeals) held that the appellants are not entitled for such credit. 4. emsp Heard both sides. The appellant relied upon the Circular dated 23-10-97 issued by the Board/Ministry of Finance and submitted that they are entitled for credit of duty paid on the fuel and stores. 5. emsp We find that this issue is already decided by the Tribunal vide Final Order No. C-I/3125-94/WZB/2001, dated 12-10-2001 2002 (140) E.L.T. 135 (Tribunal) . The Tribunal after considering the circular dated 23-10-97 held that a ship breaker is not entitled to take credit of duty paid on fuel and other oil, food stuff (other than the fuel and oil contained in the ship rsquo s engine and machinery). The Tribunal while taking into notice that the circular dated 23-10-97 is ambiguously worded set aside the penalty. 6. emsp In view of the above decision of the Tribunal, the penalty imposed on the appellant is set aside otherwise the impugned order is upheld. The appeal is disposed of as indicated.
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