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Showing 141 to 160 of 558 Records
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2004 (10) TMI 501 - CESTAT, NEW DELHI
Refund claim - Unjust enrichment ... ... ... ... ..... freight element. The entire duty paid by them has been mentioned in the invoice which was issued to their customers. As per the provisions of Section 11B(1) of the Central Excise Act, the burden has been cast upon the person who claims the refund of duty to prove that the amount of duty of incidence in relation to which refund is claimed was paid by him and the incidence of such duty had not been passed on by him to any other person. No material has been brought on record by the Appellants to establish that incidence of duty was borne by them only. They have merely mentioned in their grounds of Appeal that the Customers i.e. Department of Telecommunication has reimbursed only that much of duty of excise which was legally payable to the Government without supporting the same with any evidence or document. In absence of any proof, we hold that the bar of unjust enrichment is applicable and the amount of refund is not payable to the Appellants. The Appeal is therefore, rejected.
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2004 (10) TMI 500 - CESTAT, CHENNAI
... ... ... ... ..... uo s factory was defective or damaged goods and not scrap. Therefore, the ratio of the said decision is distinguishable, from the facts of the present case. We also find that the lower appellate authority has gone into the case in detail and his order reflects application of mind. As rightly observed by the lower appellate authority, explanation to Rule 49 is not relevant to the issue involved in the present case inasmuch as in the present case the issue dealt with is admissibility of refund in a situation when the duty paid goods are returned due to defects for repair/remaking/reconditioning and return in terms of Rule 173L. This aspect of the matter has been dealt with by the lower appellate authority. In the circumstances, we do not find any material to interfere with the order passed by the lower appellate authority and we uphold the impugned order and reject the Revenue appeals as devoid of merits. The assessee-appellants will be entitled to consequential relief, if any.
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2004 (10) TMI 499 - CESTAT, NEW DELHI
Import - Value Based Advance Licence ... ... ... ... ..... excess reversal of the Modvat credit. The refund claim was allowed by the Commissioner (Appeals) but no interest claimed by the appellant was allowed. 4. emsp The contention of the appellant is that the refund claim was considered under Section 11B of Central Excise Act, therefore, they are entitled for the interest on the amount of refund under Section 11BB of the Customs Act. 5. emsp We find that it is not a case of refund of duty paid in excess. The appellant wrongly taken the credit in violation of the conditions of the Notification No. 203/92-Cus., and after considering the hardship of the manufacturers, the Government issued amnesty scheme to end the disputes on the condition that manufacturer will reverse the credit along with interest. This scheme was adopted by the appellant and in such situation when excess amount of Modvat credit paid under the amnesty scheme is being recredited to their account, we find no infirmity in the impugned order. The appeal is dismissed.
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2004 (10) TMI 498 - CESTAT, BANGALORE
Demand - Excise duty ... ... ... ... ..... nder Section 11D of the Central Excise Act. 2. emsp Heard both sides. 3. emsp The issue simply stated is whether an assessee is required to deposit the amounts collected representing Central Excise Duty/Cess with the Department under Section 11D of the Act. The ld. Advocate argued that even if the legal position is that an assessee is required to deposit such amounts, the Department failed to invoke this provision in the show cause notice. 4. emsp We have perused the show cause notice as well as the order-in-original. We observe that both the show cause notice and the order-in-original do refer to the provisions of Section 11D of the Central Excise Act. Any person who collects any amount representing Excise Duty is bound to deposit the same in the Government Treasury. The appellant did collect extra duty/cess from his customer but failed to deposit the same. The order of the lower appellate authority confirming the demand therefore has to be upheld. 5. The appeal is rejected.
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2004 (10) TMI 497 - CESTAT, NEW DELHI
Cenvat/Modvat ... ... ... ... ..... entral Excise, Chandigarh-II 2003 (158) E.L.T. 680 (P and H) that once there is a certificate about payment of duty under Section 3A, it is not for the buyer of the inputs to go into the correctness or otherwise of amount of duty paid. The learned Counsel for the appellant submitted that in several similar cases this Tribunal also has held that dispute about the quantum of duty between the supplier and Revenue is no ground for denying credit to the input purchaser. 3. emsp The appellants claim remains covered by the aforesaid decision of the Punjab and Haryana High Court and the decisions of this Tribunal. The deemed Modvat credit given under Notification No. 58/97 is at a flat rate of 12 of the value of the purchased inputs. It is, in no way, dependent upon the amount of duty paid and the correctness of that amount. Denial of credit in the present cases is not sustainable. The impugned order is set aside and the appeals are allowed with consequential relief to the appellant.
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2004 (10) TMI 496 - CESTAT, CHENNAI
Refund claim - Limitation ... ... ... ... ..... smuch as the assessee had paid the duty under protest. Obviously, ld. Commissioner (Appeals) considered the factum of the assessee having appealed against the original authority rsquo s order of rejection of refund claim, as an expression of their protest. This view of the lower appellate authority is under challenge in the present appeal of the Revenue. This challenge cannot be sustained inasmuch as it has been consistently held by the Apex Court and this Tribunal that, for the purpose of a refund claim, the preferring of an appeal against an order demanding duty is an expression of ldquo protest rdquo within the meaning of Section 27 of the Customs Act or Section 11B of the Central Excise Act, as the case may be. The appellant has made an endeavour to distinguish some of the decisions relied on by the lower appellate authority. It, however, has not succeeded. Ld. Commissioner (Appeals) was right in applying case law. The impugned order is upheld and this appeal is rejected.
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2004 (10) TMI 495 - CESTAT, NEW DELHI
Classification - Valuation ... ... ... ... ..... lar. The expression ldquo similar goods rdquo has been defined in Rule 2(e) of the Customs Valuation Rules. According to the said rule, similar goods means, imported goods which have like characteristics and like component material which enable them to perform the same function and to be commercially interchangeable with the goods being valued having regard to the quality, reputation and existence of the trade mark and produced in the country in which the goods being valued were produced and produced by the same person who produce the goods being valued or where no such goods are available, goods produced by a different person. When the goods imported by the Appellants and goods imported by Fancy Fashions have not been compared as no sample of the imports made by all of them have been compared, it cannot be claimed by the Revenue that the requirement of definition of similar goods have been complied with. We, therefore, set aside the impugned Order and allow both the appeals.
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2004 (10) TMI 494 - CESTAT, MUMBAI
Confiscation, of goods removed from Free Trade Zone unit - Misdeclaration - Free Trade Zone - Valuation - Chemical Examiner’s Report - Samples - Penalty
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2004 (10) TMI 493 - CESTAT, NEW DELHI
Valuation - Related person status - deduction of duty from the price of the goods charged by the related person - HELD THAT:- At the relevant time, as per Section 4(4)(c) of the Central Excise Act, “related person” means a person who is so associated with the assessee that they have interest, directly or indirectly, in the business of each other and includes a holding company, a subsidiary company, a relative and a distributor of the assessee and any sub-distributor of such distributor.
It is also not disputed by the Revenue that there are other partners in the assessee firm as well as there are other directors in M/s. Marc Lab. Thus, one common person will not make a partnership firm related person of a company. There is also no force in the findings in the impugned Order that M/s. Marc Lab sold the goods at a price higher than the price charged by the assessee from M/s. Marc Lab. This is expected in the normal course of business and nothing is unusual. Thus, we hold that M/s. Marc Lab is not the related person of the assessee and the duty has to be discharged by them on the price at which goods are sold by them to M/s. Marc Lab. We, thus, allow the appeal filed by M/s. Marc Pharmaceuticals.
Once the appeal filed by the assessee is allowed, the appeal filed by Revenue does not survive and is thus rejected. In any case the Adjudicating Authority had treated the price charged by M/s. Marc Lab as cum-duty price in view of the judgment of the Supreme Court in the case of Maruti Udyog Ltd.[2002 (2) TMI 101 - SUPREME COURT]. The Supreme Court has held that when purchaser is not under obligation to pay any amount in excess of sale price already paid, duty demanded has to be deducted from the sale price. The mere fact that the Revenue has filed a Review Petition does not make the judgment inapplicable in absence of any stay granted by the Supreme Court. The appeal of Revenue is rejected.
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2004 (10) TMI 492 - CESTAT, NEW DELHI
Redemption fine and penalty - Confiscation of excess goods ... ... ... ... ..... nama which was prepared on the spot without any objection. Therefore, at this stage, the appellants cannot be heard saying that no excess goods were lying in the factory and that the mode adopted by the Central Excise officers for arriving at the excess goods was not proper. 4. emsp However, the second contention of the learned Counsel in respect of disproportionate redemption fine and penalty, deserves to be accepted. The duty involved on the excess found goods is only of Rs. 77,000/- whereas the redemption fine imposed is of Rs. 1,25,000/- and penalty of Rs. 50,000/-. Both the redemption fine and penalties are on a much higher side as compared to the duty element. Therefore, keeping in view the facts and circumstances of the case, the redemption fine is reduced to Rs. 30,000/- while the penalty to Rs. 20,000/-. However, the penalty on the Director, appellant No. 2 is maintained. The impugned order accordingly stands modified. The appeals are disposed off in the above terms.
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2004 (10) TMI 491 - CESTAT, CHENNAI
Rectification of mistake - Cum duty price ... ... ... ... ..... venue, the appellant has also raised the Modvat issue. This aspect is already covered by the remand order in the assessee rsquo s appeals and, therefore, we need not consider it again in this appeal. But the aforesaid issue relating to cum-duty price, arising in this appeal, requires to be addressed. On this issue, we have considered the submissions of both sides and we find that the issue stands settled in favour of the assessee by the Tribunal rsquo s Larger Bench decision in the case of Sri Chakra Tyres Ltd. v. CCE, Madras 1999 (108) E.L.T. 361 (T) . We further note that the view taken in Sri Chakra Tyres (supra) has since been affirmed by the apex Court in the case of CCE v. Maruti Udyog Ltd. 2002 (141) E.L.T. 3 (SC) . The Revenue rsquo s appeal is dismissed as the Commissioner rsquo s decision on the ldquo cum-duty rdquo issue is in keeping with the above case law. rdquo . 6. emsp Final Order No. 552/2003 ibid shall be read as amended. The ROM application stands allowed.
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2004 (10) TMI 490 - CESTAT, NEW DELHI
Valuation - Related person - Penalty ... ... ... ... ..... it is related to the final price settled between the related person and the Project Authority after hearing the Appellants. We also leave the issue regarding imposition of penalty on both the Appellants No. 1 and the Appellants No. 2 open to be decided by the jurisdictional Adjudicating Authority after determining the assessable value and computing the duty to be demanded from them. No penalty, however, is imposable on Shri Kuljinder Singh Ahluwalia, Managing Director of the Appellants No. 2 as the ingredients specified in Rule 209A of the Central Excise Rules, 1944 for imposition of penalty have not been established as the finding against him in the impugned Order merely mentions that as managing director of the company it is obligatory on his part that the requisite statutory obligations are complied with. Accordingly, Appeals Nos. E/361/04-NBA and E/370/04-NBA are remanded to the jurisdictional Adjudicating Authority for readjudication. Appeal No. E/362/04-NBA is allowed.
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2004 (10) TMI 489 - CESTAT, NEW DELHI
Building - Pre-fabricated buildings - Classification of - Demand and penalty ... ... ... ... ..... s size, wooden panels and castrol wheels. These parts cannot be called as prefabricated buildings nor these can be claimed to have the essential character of pre-fabricated buildings. Further Note 4 to Chapter 94 provides that for the purpose of Heading 94.06, the expression lsquo pre-fabricated buildings rsquo means buildings which are finished in the factory or put up as elements, cleared together, to be assembled on site such as housing or work-site accommodation, offices, schools, shops, shades, garages or similar buildings. There is nothing on record to prove that various goods manufactured by them will bring out a pre-fabricated building on assembling the same. In view of this, we do not find any infirmity in the impugned order and uphold the demand of duty. However, we agree with the learned Advocate that no penalty is imposable as the issue involved is of classification. We, therefore, set aside the penalty imposed on the appellants. The Appeal is thus partly allowed.
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2004 (10) TMI 488 - CESTAT, CHENNAI
Demand of duty on scented supari - dutiability of betel-nut powder (supari) - Valuation of goods - Clandestine removal - Confiscation - assumptions and presumptions - grant of abatement under Section 4(4)(d)(ii) - HELD THAT:- After an assessment of the whole evidence, we find that the quantitative basis for the demand of duty is what is contained in the Mahazar dated 4-4-1997 rather than anything stated by the witnesses. Nothing relating to such weighments can be basis for demanding duty on goods alleged to have been clandestinely manufactured and cleared prior to the said date. To raise such a demand is a presumptive or speculative exercise, which cannot be countenanced. Any demand of duty on an assessee for a given period should be founded on positive evidence indicating manufacture and clearance, without payment of duty, of excisable goods during that period. It cannot be raised on the basis of some formula devised from facts pertaining to goods produced after the said period as in the instant case.
In the present case, insofar as the period 1-4-1995 to 11-3-1997 is concerned, there is no evidence whatsoever, whether it be one of procurement and utilization of raw material or of production and clearance of supari out of the factory or of sale of such goods to show that the assessee had clandestinely manufactured and removed supari during the said period. Hence we are unable to sustain the demand of duty raised by the Commissioner on M/s. Ravi Kumar & Co. for the period 1-4-1995 to 11-3-1997. A demand for the subsequent period on the same basis was held unsustainable. In the case of Emami Ltd. v. CCE, Kolkata [2002 (7) TMI 160 - CEGAT, KOLKATA]], a similar view was taken by the Tribunal. We find, there is no dearth of decisions on the point, which are in favour of the appellants in the instant case. We, therefore, set aside the demand of duty.
The goods were seized on the premise that they were kept for clandestine removal. This, again, is only a speculation, which cannot be a basis for seizure and confiscation. We set aside the confiscation. Having found that the demand of duty is not sustainable, the penalties imposed on M/s. Ravi Kumar & Co. and others are also liable to be vacated, and we do so.
Finished goods (scented supari), which were allegedly removed by M/s. Ravi Kumar & Co. were seized from the premises of their dealers, namely, S/Shri Paranthaman, Veerabhadran and Vijayalakshmi Enterprises and those goods were also confiscated by the Commissioner on the ground that the goods were received from M/s. Ravi Kumar & Co. and were not accounted for. We have already rejected the charge of clandestine removal levelled against M/s. Ravi Kumar & Co. It would follow that the goods seized from the dealers’ premises cannot be considered to be goods removed by M/s. Ravi Kumar & Co. Consequently, the confiscation of the goods seized from the dealers’ premises is not sustainable.
In the result, the appeals of all the parties are allowed with consequential reliefs.
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2004 (10) TMI 487 - CESTAT, MUMBAI
Valuation - Ship sold for export and breaking in India ... ... ... ... ..... ) On a combined reading of the two MOAs it is seen there was no change found in the vessel, for sale by the MOA. Hence transaction value of US dollars which was offered of sale delivery Alang India as per the said first MOA dated 17-8-2000 should be a assessable value declared by the respondents was not tenable. The Commissioner Customs (Appeals) has erred in considering 3 buying commission to M/s. Cane Shipping and Trading S.A the buyer, in the price offered in the MOA dated 17-8-2000 and accordingly approved the reduction. Such a reduction is not permitable under Customs Valuation Rules. (f) We find sufficient force in the submissions made by Revenue for setting aside the order of lower authorities as we do not find any reason to reduce the value for the goods, which for sale of delivery at port Alang as per original MOA dated 17-8-2000. 3. emsp In view of the findings, the orders are set aside and Revenue appeal allowed after setting aside the order of the lower authority.
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2004 (10) TMI 486 - CESTAT, MUMBAI
Penalty - Imposition and quantum of ... ... ... ... ..... at credit cannot be taken when depreciation is claimed under the Income Tax Act. The appellant also relied on the case of Dynamatic Technologies Ltd v. CCE, Chennai 2003 (54) RLT 675 (T) in which the Tribunal held that the penalty under Section 11AC and Rule 173Q not leviable when duty amount is voluntarily paid before issue of show cause notice. I find that the appellant themselves have pleaded before the Commissioner (Appeals) that their case falls under the provisions of Section 11AC by which the penalty can be reduced 25 of the duty evaded. The Commissioner (Appeals) acted accordingly. The appellant has now taken a stand that no penalty is imposable. The Commissioner (Appeals) has rightly relied upon the proviso to Section 11AC entries in the year 2000 and reduced the penalty to 25 of the duty sought to be evaded. I do not find any further justification in the claim that no penalty should have been imposed at all in the case of this type. The appeal is therefore rejected.
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2004 (10) TMI 485 - CESTAT, KOLKATA
Stay of Tribunal’s own final order - Jurisdiction to modify own order ... ... ... ... ..... he Final Order No. A-1360/KOL/2002 2003 (154) E.L.T. 701 (Tri.) dated 20-12-2002. As such, this Tribunal has become functus officio after passing of the said Order and has, therefore, no jurisdiction to modify its own Order or to entertain any such request. 3. emsp After hearing both sides, we agree with the submission of the learned J.D.R. for the Revenue. Since this Tribunal has become functus officio in the matter, we do not pass any Order on the subject Stay Petition. The said Petition is accordingly dismissed.
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2004 (10) TMI 483 - CESTAT, BANGALORE
Valuation - Textile materials, processed - Demand - Res judicata - Reference to Larger Bench
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2004 (10) TMI 482 - CESTAT, KOLKATA
Stay/Dispensation of pre-deposit - Financial hardship ... ... ... ... ..... the appeal may be heard on merits. 2. emsp Ld. SDR requests that the appellant be directed to deposit the entire duty. In the present case Joint Commissioner of Central Excise, Patna has observed in his order that all the sustained owned unit of Sugar Corporation are currently passing through a phase of acute financial crisis and at present the Corporation itself is on brink of collapse. All the units are closed at present due to their financial crunch and it appears that there is no remedial measures possible now for upliftment of these units. 3. emsp In view of above findings I waive the condition of pre-deposit of duty. Let the case put up for regular hearing on 24-12-2004.
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2004 (10) TMI 481 - CESTAT, NEW DELHI
Determination of assessable value of pesticides - HELD THAT:- Under Section 4 of the Central Excise Act, the assessable value of the goods on each removal shall, in a case where the goods are sold for delivery at the time and place of the removal, be the transaction value. In any other case, the value shall be determined under the Central Excise Valuation Rules. As in the present matter, the goods are only sold from the consignment stock agent’s place, the assessable value has to be determined under the Valuation Rules, 2000 and admittedly the Rule applicable is Rule 7.
Once the normal transaction value of the impugned goods sold from other place at or about the same time is ascertainable, there is no need to determine the assessable value on the basis of price at which the goods may be sold subsequent to the time of removal of goods. The Board has also clarified this position vide Circular No. 643/34/2002-CX, dated 1-7-2002. A doubt was raised as the definition of normal transaction value Rule 2(b) of the Central Excise Valuation Rules does not indicate the time period over which the “greatest aggregate quantity” is to be computed.
Accordingly we set aside the impugned Order and allow the appeal.
............
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