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Case Laws
Showing 141 to 160 of 624 Records
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2004 (2) TMI 602 - CESTAT, CHENNAI
Appeal by Department - Authorisation ... ... ... ... ..... ldquo the order is not correct rdquo . 3. emsp Ld. Consultant Shri M.S. Kumaraswamy points out that there is no application of mind by the Commissioner and the required pre-requisite terms of ldquo not legal and proper rdquo has not been used and, therefore, in terms of the Apex Court judgment cited above, the appeal filed by Revenue is required to be dismissed. 4. emsp We have carefully considered and perused the submissions as well as the note sheet order. We find that the pre-requisite requirement of Section 35B(2) of Central Excise Act. 1944 is ldquo not legal and proper rdquo , which has not been stated in the authorisation letter or even in the note sheet order. Therefore, in terms of the Apex Court judgment, the authorisation given is not ldquo proper and legal rdquo and hence, the appeals filed by the Revenue are required to be rejected on this ground. Respectfully following the judgments cited above by the ld. Consultant the appeals are dismissed as not maintainable.
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2004 (2) TMI 601 - CESTAT, NEW DELHI
Confiscation of goods and penalty ... ... ... ... ..... similar circumstances bona fide explanation was offered for non-posting of entries in the RG1 register, the Tribunal set aside the confiscation of the goods and penalties under Rule 173Q (new Rule 25). In the case of Nizam Sugar Factory Ltd. v. CCE, 1987 (27) E.L.T. 40 (AP) and Kirloskar Brothers Ltd. v. UOI, 1988 (34) E.L.T. 30 (Bom.), referred by the ld. JDR facts and circumstances were not the same, as of the present case, detailed above, and there was sufficient material in those cases to suggest the non-accountal and removal of the goods by the assessee and for that reason Rule 173Q was invoked even in the absence of mens rea. But such is not the position in the present case. Therefore, these cases are not of any help to the respondents which have been relied upon by the learned JDR. 6. emsp In view of the discussion made above, the impugned order is set aside and all the appeals of the appellants are allowed with consequential relief, if any, permissible under the law.
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2004 (2) TMI 600 - CESTAT, NEW DELHI
Demand - Finding without evidence - Process of stentering - Classification of goods - Suppression of facts - Confiscation - Non-accountal - Manufacture, completion of - Adjudication - Show cause notice - Demand - Limitation - Extended period
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2004 (2) TMI 598 - CESTAT, CHENNAI
Demand - Cenvat/Modvat - Inputs - Line rejections ... ... ... ... ..... reversed. Further I also find that even in the grounds of appeal under para 1, the Revenue has clearly stated as under lsquo The fact of this case is that the assessee removed ldquo line rejections (inputs rejected after issue for manufacture) under debit notes rdquo rsquo Therefore, the contention of the Revenue that the respondents-assessee have cleared the inputs as such has not been proved by the department and what has been removed was only line rejects as brought out even in the grounds of appeal by the Revenue. Once it is accepted by the Revenue that what has been removed was only ldquo line rejects rdquo , the question of demanding duty on the same under Rule 57F(3) does not arise. In view of above, I am of the considered opinion that the impugned order passed by the lower appellate authority cannot be found fault with. I therefore, uphold the same and reject the Revenue appeal. The cross-objection filed by the respondents-assessee also stands disposed of accordingly.
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2004 (2) TMI 597 - CESTAT, NEW DELHI
Penalty - Clandestine removal - Shortages of goods ... ... ... ... ..... lty was incorrect. 3. emsp Penalty under Section 11AC or 173Q is for evasion of Central Excise duty through fraud, suppression of facts etc. In the present case, what was observed by the Central Excise Officer was that the stock according to books was more than the physical stock. The assessee also explained that, on account of peak season work load, lapse had taken place on the part of the staff. The show cause notice also did not go beyond observing the physical shortage and the appellant rsquo s explanation. Thus, there is no evidence showing any deliberate acts to evade Central Excise duty. In fact, instead of suppression of production, the books of accounts are found to state production in full. The appellant rsquo s explanation about lapse on the part of the staff would appear to explain non shy payment of duty before the clearance of the goods. In these facts and circumstances, the Commissioner rsquo s order cannot be found fault with. The appeal fails and is rejected.
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2004 (2) TMI 596 - CESTAT, KOLKATA
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... heir PLA during the relevant period. As such, there cannot be any motive for the appellant to indulge in under valuation. Appellants also submit that part of the demand was hit by limitation inasmuch as both the units were situated under the jurisdiction of same Range Superintendent. 3. emsp After hearing Shri T.K. Kar, learned SDR, we find force in the above contention of the learned Consultant. Larger Bench of the Tribunal in Jay Yuhshin Ltd., 2000 (119) E.L.T. 718 (Tribunal - LB) has held that Revenue neutral situation would arise only after the assessee can show that the duty demanded would be available as credit to himself and not to his buyer. In the instant case we find that it is Revenue rsquo s own case with M/s. Utkal Steel Ltd., is the sister concern of the appellant and as such the Revenue rsquo s neutral situation would arise in the present case. On this short point itself, we allow the stay petition unconditionally and fix the main appeal on 15th of March, 2004.
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2004 (2) TMI 595 - CESTAT, NEW DELHI
Rectification of mistake ... ... ... ... ..... memorandum of Appeal. In the light of these facts, the Hon rsquo ble Supreme Court observed that even the vigilant litigant is prone to commit a mistake. And effort of the Court should not be one of finding means to pull down the shutters of adjudicatory jurisdiction before a party who seeks justice. In the present matters, the Applicants have, it appears, chosen to pursue their matters before another forum other than the Appellate Tribunal in the light of the decision of the Hon rsquo ble High Court in Shreeji Traders case and therefore, they withdrew the appeals from the Tribunal. As they have chosen to pursue their matters in another forum, it cannot be said that the doors of justice are being closed before them. Further, as the Applicants have not disputed the fact that the learned Advocate appearing on their behalf had withdrawn all the appeals, there is no mistake apparent on the face of the record. We, therefore, find no merit in these applications which are rejected.
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2004 (2) TMI 594 - CESTAT, NEW DELHI
SSI exemption ... ... ... ... ..... tention of the appellants is that in this situation, it cannot be said that the appellants are manufacturing parts of the refrigerators. 4. emsp The learned SDR appearing on behalf of the Revenue reiterates the findings of the lower authorities. 5. emsp We find that parts of refrigerators are not entitled for the benefit of the small-scale exemption. The appellants are only manufacturing terminal connectors and their customers are using these terminals in the manufacture of relays. The relays so manufactured are further used in the manufacture of refrigerators. In these circumstances, we agree with the contention of the appellants that they are not manufacturing parts of the refrigerators. The mere manufacture of terminals which are not directly cleared or used by the manufacturers of refrigerators does not make appellants ineligible for the benefit of SSI exemption notification. 6. emsp In view of the above findings, the impugned order is set aside and the appeal is allowed.
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2004 (2) TMI 593 - CESTAT, MUMBAI
Penalty - Short payment of duty ... ... ... ... ..... en subsequently paid along with the interest. Any pecuniary advantage which may have accrued to the appellants on account of the delay in payment stands neutralized by recovery of the interest on the said amount. Sub-rule (3) quoted as above merely states that the manufacturer is liable to a penalty of Rs. 500/- per day. However, the penalty determined has to be commensurate with the amount which remains unpaid and has also to depend on the reason for the delay in payment. If the penalty of Rs. 500/- per day has to be imposed in every case irrespective of the amount of short payment or the reason for such short payment, the rule in its application would become draconian whereas it has apparently been introduced as a facilitation measure. 2. emsp Considering the small amount of Rs. 994/- involved which remained unpaid and the fact that the interest has also been recovered, I reduce the penalty of Rs. 66,000/- to Rs. 500/- only. 3. emsp The appeal is allowed in the above terms.
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2004 (2) TMI 592 - CESTAT, MUMBAI
Cenvat/Modvat - Duty paying documents - Bill of entry, endorsed bill of entry ... ... ... ... ..... arehouse on ex-bond bill of entry have been duly received in the appellants factory. Modvat credit cannot be denied on such goods. We also observe that the Commissioner rsquo s second contention that since goods have not actually been removed from the premises Modvat credit is not admissible is not correct. In this case the appellants have explained as to why the goods were sold to M/s. TCIL, how a gate pass has been prepared and why the goods have not been actually dispatched. We find strength in the appellants rsquo argument that the goods have not been actually removed because they have to be received back into their factory for manufacture of finished goods on job work basis in any case. The mere fact that the goods on which duty has been paid has not been removed from the factory is not sufficient to deny Modvat credit, which is otherwise admissible. The Commissioner rsquo s order denying the credit on technical grounds has to be set aside. 7. emsp The appeal is allowed.
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2004 (2) TMI 591 - CESTAT, NEW DELHI
Import - DEPB Scheme ... ... ... ... ..... ustification to either subjecting the imported goods in question to import duty by denial of duty free exemption under Pass Book Scheme. Therefore, we allow the appeals of the party and other appellants and set aside the impugned order. 11. emsp The Revenue rsquo s cross appeal is directed only against the finding of the Commissioner with reference to the applicable rate of duty under Section 15(1)(c) of the Customs Act, as also on the failure of the Commissioner to apply the value of good quality material to the imported goods. In the light of the view, we have taken above to the effect that, the goods are eligible for duty exemption in terms of Pass Book Scheme, the goods being synthetic waste, the application of rate of duty on the date of payment of duty becomes totally irrelevant and for that reason also, the proposal in the Revenue rsquo s appeal for adoption of value of prime quality material also cannot be accepted. Hence, the appeal filed by the Revenue is dismissed.
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2004 (2) TMI 590 - CESTAT, NEW DELHI
Cenvat/Modvat - Explosives used in off-factory mines ... ... ... ... ..... f production rdquo figures in the latter part of each clause. This expression is conspicuously absent in the former part of each clause. Admittedly, explosives belong to the former part and, in that case, there is no requirement of explosives being used within the factory of production of cement so as to be eligible for input duty credit under Rule 2(f) ibid. I note that the Board rsquo s Circular was issued before this Bench decided the cases of J.K. Udaipur Udyog (supra) and Birla Corporation (supra). In the instant case, the department has not claimed that the ratio of the said decisions of the Tribunal is inoperative, nor has it been shown, de hors Board rsquo s Circular, that the ratio of the Apex Court rsquo s judgment in Jaypee Rewa Cement (supra) is not applicable to the instant case. 7. emsp Following the case law cited by the Counsel, I hold that the Modvat credit in question is admissible to the appellants. The impugned order is set aside and the appeal is allowed.
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2004 (2) TMI 589 - CESTAT, MUMBAI
Cenvat/Modvat ... ... ... ... ..... period. 2. emsp Heard Shri S.S. Bhagat, learned SDR, for the Department, who contends that the appellants had not claimed their case to be covered under Rule 57J at any stage during the earlier proceedings. Shri Shroff in reply states that coverage under Rule 57J was claimed before the Assistant Commissioner who heard the appellants but the order in original has been passed by another Assistant Commissioner who never heard the appellants. 3. emsp After hearing both sides and perusal of case records including the cited case laws, I am of the view that in the instant case, the appellants are eligible to avail input duty credit on the impugned goods. Not only the case laws cited are in favour of the appellants, but also the time period involved is little over 6 months but within the period of 9 months provided for in the rules at a later point of time and hence, can not be considered to be unreasonable. As such, the appeal is allowed with consequential benefit to the appellants.
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2004 (2) TMI 588 - CESTAT, CHENNAI
Penalty and Interest ... ... ... ... ..... by the ld. Counsel and also the findings recorded in the impugned order are extracted above. The Tribunal in the case of Ashok Leyland Ltd. v. CCE, reported in 2003 (156) E.L.T. 995 (Tri. - Chennai) has taken note of the above judgments and has held that when duty is paid prior to issuance of show cause notice, then penalty and interest are not leviable as there was no allegation of suppression. Similar view was expressed in the case of Rashtriya Ispat Nigam Ltd. v. CCE, Visakhapatnam reported in 2003 (161) E.L.T. 285 (T) which has been confirmed by the Apex Court as reported in 2004 (163) E.L.T. A53. In view of the above, I am of the considered view that the issue is no longer res integra as the same has been decided by the Tribunal and confirmed by the Apex Court. The order passed by the Commissioner (Appeals) is legal, proper and there is no infirmity in his order. I, therefore, set aside the penalty. There is no merit in the Revenue appeal and hence the same is rejected.
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2004 (2) TMI 587 - CESTAT, NEW DELHI
... ...
... ... ..... ant. On going through the decision in Alembic Glass Inds. Ltd. we are inclined to accept the submissions made on behalf of the appellant. On the other hand the Hon rsquo ble Supreme Court in the case of Philips India Ltd. held that when the manufacturer is sharing the advertisement expenses with dealers, such advertisement cost cannot be added to the assessable value of the product cleared by the assessee. In the present case, we find that there are no circumstances which would justify the ratio of the decision in Alembic Glass Inds. to be applied. We, therefore, find no reason to affirm the finding of the Commissioner (Appeals) that the advertisement charges incurred by M/s. Fulford India Ltd. has to be added to the assessable value of the six products sold to M/s. Fulford India Ltd. In the result, we set aside the impugned order and allow the appeal. The appellant has already deposited the entire duty portion of the demand. It will be entitled to refund of the above amount.
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2004 (2) TMI 586 - CESTAT, CHENNAI
Cenvat/Modvat ... ... ... ... ..... vail Modvat benefit. It also states that through oversight, entries for the same in the RG 23D register had not been made. They had further stated that they had taken enough steps to rectify the mistake and have requested the Deputy Commissioner of Central Excise, A-III Range, A-Division, Chennai to condone the lapse in the said letter. This letter was addressed to Deputy Commissioner of Central Excise, A-III Range, A-Division, Chennai. In view of this letter, I am of the considered opinion that the matter has to go back to the original authority for lsquo de novo rsquo consideration to re-examine the issue in the light of the rectified documents/registers and pass an appropriate order after granting a reasonable opportunity to the appellants of being heard. The matter shall be decided within a period of 6 months from the date of this order. Thus, the appeal is allowed by way of remand to the original authorities. The Stay Application is also disposed of. Ordered accordingly.
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2004 (2) TMI 585 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Demand - Limitation ... ... ... ... ..... ts with intent to evade payment of duty. 7. emsp We find that the applicants were regularly filing classification lists claiming the benefit of Notifications and the classification lists were duly approved after verification. Therefore, prima facie on limitation, we find that the applicants have a strong case. In respect of demand, which is within the normal period of limitation and in view of the arguments made by the Revenue, we find it is not a fit case for total waiver of duty. The Balance-sheet produced by the applicants, in respect of financial hardship, shows that the applicants had enough income from Sales. Therefore, taking into consideration the facts and circumstances of the case, the applicants are directed to deposit Rs. five lakh within a period of six weeks. On deposit of the above-mentioned amount, the pre-deposit of the remaining amount of duty and entire amount of penalties is waived for hearing of the appeal. To come up for reporting compliance on 5-4-2004.
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2004 (2) TMI 584 - CESTAT, NEW DELHI
Stay order - Modification of ... ... ... ... ..... lakhs under TR-6 challan dated 19-12-2000. As the High Court rsquo s Order was issued in similar facts and circumstances, Counsel pleads, the stay order of this Tribunal may be modified appropriately. The appellants have reiterated their plea of financial hardships in the present application. This plea is supported by the Balance Sheets for the last 3 financial years. On the strength of this evidence, Counsel prays for a period of 4 weeks for deposit of any amount which may be fixed in terms of the High Court rsquo s order. I have heard the DR also. 3. emsp As the High Court rsquo s Interim Order was passed in a similar case of the same party after considering the Tribunal rsquo s Larger Bench decision in Digambar Foundary (supra), I am inclined to follow suit in the instant case. Accordingly, the Order dated 16-12-2003, is recalled, and the appellants are directed to deposit 50 of Rs. 5,13,834/- within a period of 4 weeks from today and report compliance on 8th March, 2004.
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2004 (2) TMI 583 - CESTAT, MUMBAI
Refund - Reprocessed goods cleared on payment of duty ... ... ... ... ..... 173H has been indicated instead of Rule 173L. Besides this typographical error, no other infringement of Rule 173L has been alleged or noticed. All the particulars that are required to be mentioned in the records under Rule 173L are available, though the title refers to Rule 173H. 4. emsp Heard both sides. 5. emsp Ld. DR supports the order of the lower authorities stating that the procedure was not followed. 6. emsp I note that there is compliance of conditions and procedures contained in Rule 173L of the Central Excise Rules. Except for the caption at the top of the records, which indicates Rule 173H, there is no other infirmity in record keeping, so far as the admissibility of the claim under Rule 173L is concerned. 7. emsp Consequently, I hold that there has been a compliance of provision of Rule 173L and rejection of the claim was without any authority. Accordingly, the appeal succeeds and the same is allowed with consequential relief, if any, in accordance with the law.
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2004 (2) TMI 582 - CESTAT, NEW DELHI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... t to claim the Modvat credit on the duty paid inputs is a substantive right which has been allowed to the assessee under the statutory rules and as such the same cannot be allowed to be taken away by the Department on the technical lapses/omissions, such as, loss, misplacement in transit or in the office in due course. The ratio of the law laid down in the case of Cheema Paper Mills (P) Ltd. v. CCE, Meerut-II, 2003 (58) RLT 771, referred to by the learned JDR, is not attracted to the facts of the present case. In that case the loss of the duplicate copy for transporter was not proved and the Tribunal for that reason observed that the Modvat credit could not be availed on the original invoice, extra copy or photocopy of the invoice, but such is not the position here. 4. emsp In view of the discussion made above, the impugned order of the Commissioner (Appeals) is set aside and the appeal of the appellants is allowed with consequential relief, if any, permissible under the law.
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