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Showing 141 to 160 of 553 Records
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2004 (6) TMI 503 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... by the appellant to seek protection of Board rsquo s Order 680/71/2002-CX., dated 10-12-2002. 3. emsp Considered. The issues will have to be heard in detail at the final hearing since the S.C. in case of M/s. Kalyani Brakes 2004 (168) E.L.T. 145 (S.C.) has clarified the applicability to Board rsquo s order, as per Dhiren Chemical case, while a contrary finding appears to be given in Maruti Foam (P) Ltd. 2004 (164) E.L.T. 394 (S.C.) as submitted by ld Sr. Advocate. Keeping in mind that the unit is closed, a complete waiver has been granted on a similar matter, Supreme Court decisions on the subject have to be heard in detail as relied by both sides. We would also grant full waiver stay recovery thereof. In the interest of uniformity, and settling this issue, we would grant early hearing and fix the date for the same on 18-8-2004 and direct Revenue to file appropriate applications to get both the matters listed before the same Bench. 4. emsp Application disposed in above terms.
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2004 (6) TMI 502 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... on whether any penalty is imposable on a person under Section 11AC of the Central Excise Act where such person has paid duty voluntarily before issuance of show cause notice under Section 11A of the said Act stands settled by a Larger Bench of this Tribunal. Ld. Counsel has cited the Larger Bench decision 2004 (168) E.L.T. 466 (Tri. - LB) 2004-TIOL-423-CESTAT-DEL-LB . Ld. Counsel argues that the Larger Bench decision in relation to penalty under Section 11AC ibid is squarely applicable in principle to a penalty imposed in similar circumstances under Section 114A of the Customs Act. 3. emsp We have heard ld. DR also. 4. emsp We are impressed by the above submission of the Counsel. Following the ratio of the Larger Bench decision, we take the view that the appellants have a strong prima facie case in relation to the penalty imposed on them under Section 114A ibid. Accordingly we waive pre-deposit and stay recovery and allow the stay application in respect of the penalty amount.
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2004 (6) TMI 501 - CESTAT, KOLKATA
Production capacity based duty - Closure of factory ... ... ... ... ..... that - ldquo Production capacity based duty - Closure of factory - Manufacture Re-rolling products, closed down factory and surrendered registration certificate - No duty liability thereafter - Such manufacturers who opted to discharge duty liability are required to discharge duty liability even during closure of unit and till surrender of registration certificate - Duty liability extinguished and not abated - Rule 96ZP(3) of erstwhile Central Excise Rules, 1944. rdquo In present case also the factory was permanently closed down on 31-12-97 and the Respondent surrendered Central Excise Registration Certificate on 1-1-98. The demand pertains to period w.e.f. December, 1998 to March, 2000 when the Respondent had closed down it rsquo s unit and the Registration Certificate was surrendered. So, thereafter, there could not be any duty liability on the Respondent. In light of above we do not find any substance in the appeal of the Revenue. 4. emsp Consequently, appeal is dismissed.
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2004 (6) TMI 500 - CESTAT, BANGALORE
Auto clipping machine - Marketability of ... ... ... ... ..... e a commodity, which should be marketable. Admittedly the function of machine in the present case as stated in the appeal memo itself is to clip/seal both side ends of the pleated paper. The steel clip coil is fed to the machines for sealing both the ends of the pleated filter paper, which automatically bends the steel clip and bent to sizes. They themselves admit that the item is not marketable and cannot be sold as goods or ware. Therefore, in terms of the ratio of the judgment cited by both sides it is not a commodity as it is not marketable and not sold. The Commissioner has rightly noted the definition of commodity as appearing in the case of Venkataramana Hatcheries v. CTO (66 STC 154 AP) and as appearing in New Websters rsquo Encyclo Dictionary 1989 Edition. In view of the fact that the imported machine does not produce a commodity and that too marketable one the benefit of notification has been rightly denied. There is no merit in this appeal and the same is rejected.
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2004 (6) TMI 499 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Modvat ... ... ... ... ..... icate that the use of the electricity should be exclusively within the factory. Apparently, ld. Commissioner (Appeals) has imported into the proviso something which it did not intend to provide. Admittedly a part of the electricity generated by making use of the capital goods in question was used within the factory, the remaining part having been sold out to the State Electricity Board. Use of electricity within the factory is necessarily limited by the capacity of production of finished goods. The quantity of electricity generated in excess of this limit cannot be stored in the factory and should necessarily be disposed of. The extra electricity was disposed of by the party by sale to the State Electricity Board, which is a public purpose. For this mistake , the assessee cannot be penalised by denial of Modvat credit. The party has made out a strong prima facie case and accordingly I grant waiver of pre-deposit and stay of recovery in respect of the aforesaid amount of duty.
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2004 (6) TMI 498 - CESTAT, BANGALORE
Stay/Dispensation of pre-deposit - SSI Exemption ... ... ... ... ..... 002 (143) E.L.T. 241 (S.C.). 3. emsp On a careful consideration of the submissions made by both the sides, we find that the matter requires to be examined in detail based on the facts and evidence and that can be done at the time of final hearing. At present, we are not convinced that strong prima facie case is in their favour to grant waiver as prayed for by the appellants. Therefore, the appellants are directed to pre-deposit balance disputed duty amount of Rs. 8,096/- (Rupees Eight thousand ninety-six only) within two months from today and on such deposit, pre-deposit of disputed penalty amount stands waived and recovery stayed till the disposal of the appeal. The stay application is allowed in the above terms. 4. emsp It is also made it clear that in case the appellant fails to comply with this order within the stipulated time, then the appeal shall be liable for dismissal for non-compliance in terms of Section 35F of the Act. Call on to report on compliance on 26-8-2004.
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2004 (6) TMI 497 - CESTAT, BANGALORE
Stay/Dispensation of pre-deposit ... ... ... ... ..... posed levy should have been 17.83 instead of 20 . Their plea has been accepted by the Commissioner (Appeals) and the Commissioner (Appeals) directed for loading the value by 17.83 instead of 20 as the difference in price is 35.67 instead of 39.67 . In view of this submission made by the appellants themselves, they cannot now raise a different ground on the aspect of their imports being at a higher level and should not be compared with the imports by M/s. BPL Cellular. However, taking into consideration the overall facts and circumstances pleaded we are of the considered opinion that appellants should pre-deposit duty of Rs. 45 lakhs for the purpose of hearing the appeal within three months from today. On such deposit the balance of duty stands waived and recovery stayed till the disposal of the appeal. They are required to report compliance on 28th September, 2004. They are entitled to move an application for early hearing of the appeal after due compliance of the stay order.
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2004 (6) TMI 496 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... disputing this fact. The Applicants have also relied upon the decision of the Tribunal in the case of Mafatlal Industries - 2001 (134) E.L.T. 725. The Tribunal in this case held that marketing and selling expenses would not form the element in the assessable value of the captively consumed product. Keeping in view the facts and circumstances of the case and in view of the above decision the applicants have a strong prima facie case in their favour. Therefore, the pre-deposit of duty and penalty is waived for hearing of the appeal. Adjourned to 21-9-2004 for arguments.
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2004 (6) TMI 495 - CESTAT, CHENNAI
Cenvat/Modvat - Inputs ... ... ... ... ..... 896 wherein Modvat credit has been allowed on Hydrochloric Acid which was used in the effluent treatment plant following the judgment of the Hon rsquo ble Apex Court in the case of Indian Farmers Fertilizers Co-op. Ltd. reported in 1996 (86) E.L.T. 177 (S.C.). 3. emsp Heard Shri A. Jayachandran, learned JDR. 4. emsp I have considered the submissions made by both the sides and find that the issue is no longer res integra as the issue has been decided by the Hon rsquo ble Apex Court in the case of Indian Farmers Fertilizers Co-op. Ltd. (supra). This judgment has been followed by this Bench in the appellants rsquo own case as well as by the Bangalore Bench in the matter reported 2002 (148) E.L.T. 896. Respectfully following the ratio of the above noted judgments, I hold that Modvat credit is admissible on Hydrochloric Acid and Aqua chem used by the appellants in the effluent treatment plant. The impugned order is accordingly set aside and the appeal allowed. Ordered accordingly.
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2004 (6) TMI 494 - CESTAT, MUMBAI
SSI Exemption ... ... ... ... ..... r was not met by them. Subsequently enhancement of the criteria to Rs. 200/- lacs was effective only from 27-4-89 as such it is not the case where the appellant had cleared their goods on payment of duty, when they were otherwise entitled to the exemption so as to grant them adjustment. As such, we find the same has been rightly confirmed against the appellant. We find no merits in the appeal in the said plea of the appellant. The same is, accordingly, rejected. 6. emsp However, Shri M.H. Patil has pleaded that the said duty now being confirmed against, them should be allowed deduction by treating the entire realization as cum-duty price, in terms of the Larger Bench decision in the case of Srichakra Tyres 1999 (108) E.L.T. 361 (Tri. - LB) . We agree with him on this count. Accordingly, original adjudicating authority would requantify the demand by treating the entire realization as cum-duty and allowing the benefit of duty deduction. Appeal is disposed of in the above terms.
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2004 (6) TMI 493 - CALCUTTA HIGH COURT
Writ jurisdiction, Article 226 of Constitution of India - Scope of - Import - Export - Advance licence, transferability
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2004 (6) TMI 492 - CESTAT, MUMBAI
Inclusion of royalty in the assessable value of CDs - Job work - Valuation of free supply items provided by customers - HELD THAT:- We take note of appellant’s grievance that the value of the inlay card adopted at the higher rate Rs. 6/- per CD and the jewel box is much on the higher side, we find that whereas the department has relied upon the statement recorded during investigation to arrive at the cost of the inlay card, the appellants have contested the same on the ground that it is only in the case of audio CD inlay card is supplied and not in case of video CD and even as per the statement the average cost would come to Rs. 1.83. As the matter already stand remanded to Deputy Commissioner for requantification of demand, and as we do not have any sufficient material to adjudicate the issue of value of inlay card and jewel box, we direct the Deputy Commissioner to do so in the de novo proceedings.
We, however, make it clear that it is only the value part of the said free supply items, which were disputed by the learned Advocate, who otherwise agreed that the same is required to be added in the assessable value of the CDs. We are also not passing any order on the quantum of penalty which would be dependent upon the quantum of duty re-determined against the appellants in the de novo proceedings. Needless to say that the appellant would be afforded opportunity to place their case before the adjudicating authority during remand proceedings.
Before we depart, we would like to mention that both sides have referred to the provision of the Copyright Act, 1957 and the Trade Mark Act, 1999 and some encyclopaedia to draw our attention to the fact that it is only a copyright owner who can make copies of the sound recordings and has the exclusive right over them and infringement of the various rules results in penal action against the offender. Though the said provision may be of academic interest to all of us we do not find any relevance of the same in deciding the present dispute of valuation of CDs.
Appeal is thus disposed of in above terms.
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2004 (6) TMI 491 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... benefit of invalidated advance licences from such customers/advance licence holders, received by the appellants. 2. emsp On hearing both sides and noting that there is prima facie force in the submission of the applicants that upward revision can be directed and the amount treated as additional consideration only when it is received from the buyer to seller and noting that in this case the lower price to advance licence holders was as a result of statutory benefit under the advance licence scheme, applying the ratio of the Tribunal rsquo s order in the case of IFGL Refractories Ltd. v. CCE, Bhubaneswar-II 2001 (134) E.L.T. 230, we hold that a prima facie case for waiver has been made out and that the decision of the Tribunal in the case of Tata Refractories Ltd. v. CCE, Bhubaneswar, 2002 (141) E.L.T. 460 relied upon by the Commissioner is prima facie distinguishable. Accordingly we dispense with the pre-deposit of duty and penalty and stay recovery thereof pending the appeal.
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2004 (6) TMI 490 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... on rendered in the case of Neelkamal Plastics Ltd. v Commissioner of Central Excise, Noida reported in 2004 (164) E.L.T. 197 (Tri.-Del.), wherein it was held that no duty was payable in respect of goods destroyed during testing. Ld. Counsel has also pointed out that the company has been declared sick by BIFR. She has produced the Company rsquo s Annual Report (2002 - 2003) in support of the plea of financial hardships raised in the present application. 3. emsp Ld. DR has opposed the application by submitting that there is no evidence of the tyres in question having been destroyed in testing. With regard to RG I stage of the goods, the DR has not cited any Trade Notice or Circular superseding the Trade Notice cited by the Counsel. 4. emsp Having examined the submissions, we are of the view that the applicants have established a prima facie case on the strength of the Trade Notice. Accordingly, waiver of pre-deposit and stay of recovery are allowed. Appeal to arise in its turn.
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2004 (6) TMI 489 - CESTAT, NEW DELHI
Paper - Exemption - Waste/Scrap paper - Appeal to Tribunal - Grounds ... ... ... ... ..... djudication stage the Assistant Commissioner had extended the benefit of Notification No. 89/95 to the Appellants and had dropped the demand of duty demanded from them in the show cause notice. Therefore, there was no reason for the Appellants to claim the benefit of Notification No. 10/96 before the Adjudicating Authority. It is a settled law that the benefit of Notification can be claimed at any stage of the proceeding. However, as it is to be examined as to whether the conditions specified in the Notification has been fulfilled before granting the benefit thereof, we remand the matter to the Adjudicating Authority with the direction to examine whether the benefit of Notification No. 10/96-C.E., dated 23-7-96 is available to the Appellants after affording an opportunity of hearing to them. We also direct the Appellants to make their submissions before the Adjudicating Authority in this regard within a month of receipt of this order. The Appeal is disposed of in these terms.
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2004 (6) TMI 488 - CESTAT, MUMBAI
Classification ... ... ... ... ..... pute and which has been found to have Molecular weight of around 3,137 are not synthetic resins covered by Tariff Item 15(1). Under this heading several groups of artificial or synthetic resins and plastic materials are covered. One such group is other high polymer, artificial resins, artificial plastic materials and alginic acid is an example of such a group. There is no dispute that the alginic acid is an artificial resins - it is a linear polymer of the mannuronic and in the Pyrenees ring form, composed of Beta-D, mannuronic acid residues. However, this cannot lead to the automatic conclusion that the products in dispute fall for classification under Tariff Item 15A(1) as only artificial resins of high polymers will fall for coverage under this headings, in view of the definition of synthetic resins set out above. 4. emsp We, therefore see no reason to interfere with the impugned order of the lower appellate authority, and accordingly uphold the same and reject the appeal.
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2004 (6) TMI 487 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... provisions of Section 11D did not cover levy of Additional Duties of Excise (Goods of Special Importance) Act, 1957 is not prima facie acceptable as in the case of Bripanil Industries Ltd. v. Commissioner of Central Excise 2002 (144) E.L.T. 391 (Tri.-Bang.) it has only been held that the provisions of Section 11D do not cover offences and penalties and confiscatory powers, following the decision of the Hon rsquo ble Supreme Court in the case of Pioneer Silk Mills Pvt. Ltd. v. U.O.I. 1995 (80) E.L.T. 507 (Del.) . 3. emsp In the light of the above, we hold that prima facie case for waiver has been made out. Having regard to the pre-deposit of Rs. 50,000/- within a period of 8 weeks from today and on such deposit, the pre-deposit of balance duty and penalty shall stand waived and recovery thereof stayed pending the appeal. Failure to comply with this direction shall result in vacation of stay and dismissal of appeal without prior notice. Compliance is to be reported on 5-8-2004.
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2004 (6) TMI 486 - CESTAT, NEW DELHI
Cenvat/Modvat - Deemed credit ... ... ... ... ..... ke in view of the Clause (5) of the Notification, referred to above. The compliance with the provisions of the notification has to be made by the appellants as they want to take the benefit of this notification for claiming the deemed Modvat credit. They could easily approach the manufacturer/supplier of the inputs for rectification of mistake committed by him while issuing them the invoices, but they had not taken that recourse. That being so, they have to suffer and not the manufacturer/supplier of the goods. The ratio of the law laid down in the case of Delhi Steel Indus v. CCE, Chandigarh, supra, referred to above, is not attracted to the facts of the case. In that case the issue involved was regarding the declaration by the manufacturer in the invoices in respect of discharging of his duty under Rule 96ZP, but such is not the position in the present case. 4. emsp In view of the above, the impugned order is upheld and the appeal of the appellants is dismissed accordingly.
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2004 (6) TMI 485 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... hatsoever. The present plea raised by the Counsel is forceful. Accordingly, we recall the earlier stay order and grant waiver of pre-deposit of duty and stay of recovery thereof. 3. emsp As regards penalty, Counsel has submitted that the duty for the 2nd fortnight of May, 2001 was liable to be paid on or before 5-6-2001 in the fortnightly payment system. That duty was paid on 6-6-2001, the previous date (5-6-2001) being a holiday for the bank. Counsel has submitted that the payment made on 6-6-2001 is, therefore, liable to be treated as timely payment. Counsel has also shown us documentary proof of 5-6-2001 being a holiday for SBI. The penalty proposed in the SCN was on the ground of default of payment of duty in the fortnightly payment system. Prima facie, we do not find any such default for the 2nd fortnight of May, 2001. Hence the penalty is also prima facie unwarranted. Therefore, there shall be waiver of pre-deposit and stay of recovery in respect of the penalty as well.
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2004 (6) TMI 484 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... ny such order of stay, which factual position has been fairly conceded by ld. Counsel. Ld. Counsel has contended that the proceedings before the High Court have a strong bearing on the instant case. We appreciate this submission. Nevertheless, we have to take serious notice of the fact that the party has not been able to get any order of stay of recovery of customs duty from the Hon rsquo ble High Court in its equitable jurisdiction, even though, according to them, the case before the High Court has a strong bearing on the instant case. Before us, the party has not been able to make out a bona fide case for full waiver of pre-deposit and stay of recovery. Our order for pre-deposit of Rs. 8.5 lakhs out of Rs. 17 lakhs is yet to be complied with. However, in an overall view of the matter, we would grant an extension of time for making this deposit. The applicants are directed to pre-deposit the amount of Rs. 8.5 lakhs within 15 days from today and report compliance on 9-6-2004.
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