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Case Laws
Showing 141 to 160 of 551 Records
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2000 (7) TMI 770 - CEGAT, KOLKATA
... ...
... ... ..... no longer remained final and finished product. After processing the same was converted into finished product and as such, it cannot be said that the new item which could be used as a Motor Vehicle Part by the buyer of the same, has emerged. I am also convinced with the argument that there is also no loss of revenue to the Government. The goods have been cleared from the receiver of the final product on payment of duty on which the appellants had taken the Modvat Credit. The same could have been cleared by the receiver of the final product under the provisions of Rule 57F(2) without payment of duty and re-made, re-conditioned into final product of prescribed specification by the appellants and cleared without payment of duty. As such, it is seen that there is no loss of revenue involved in the present circumstances. Accordingly, and also taking note of the Larger Bench decisions discussed by me above, I allow all the above appeals with consequential reliefs to the appellants.
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2000 (7) TMI 769 - CEGAT, CHENNAI
Appeal by Department ... ... ... ... ..... nit has closed down and the information supplied by the Deputy Commissioner (Legal) is that even land on which the Unit stood has since been sold to M/s. Nagarjuna Palma (India) Ltd. which is constructing its own factory on the land purchased by it. It is, therefore, obvious that the respondent Unit has completely closed down and even the parcel of land owned by it has been disposed of and, therefore, we see no reason in permitting the appellant to pursue this appeal. We dispose of the appeal for want of prosecution since the respondent cannot be served. There will be no order as to costs. rdquo In the present case also as per the mahazar and report filed, respondents are not in existence and they have closed down the unit. Our notices sent through the Registry also has come back undelivered with the same endorsement. In that view of the matter and in the facts and circumstances of the case, the appeal is dismissed by applying the ratio of the Apex Court judgment noted above.
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2000 (7) TMI 768 - CEGAT, CHENNAI
Appeal - Limitation ... ... ... ... ..... Considered. We have perused the records. We notice that appellant rsquo s plea for sickness is supported by the medical certificate issued by a Specialist who is highly qualified. There is no reason to disbelieve the appellant being and bed-ridden suffering from infective hepatitis and sciatica during the relevant period. The appellant being proprietory concern was required to have filed the appeal himself and therefore the reason given is sufficient and genuine. Therefore, the delay in filing the appeal before the Commissioner (Appeals) is condoned. 6. emsp The Commissioner has not decided the matter on merits. Therefore, while granting stay and recovery of the disputed amounts, appeal is taken up and remanded to the Commissioner (Appeals) for de novo consideration. The Commissioner (Appeals) shall grant an opportunity of hearing to appellants before deciding the case on merits. Ordered accordingly. 7. emsp The stay application and appeal are disposed of in the above terms.
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2000 (7) TMI 743 - CEGAT, KOLKATA
Production capacity based duty - Abatement of duty ... ... ... ... ..... After hearing both sides, we agree with the learned Advocate. We find that the Commissioner has observed that the appellants failed to corroborate the claim of erratic and poor quality of electric supply whereas the appellants are using diesel engine and not electricity. This shows a complete non-application of mind by the Commissioner. In this view of the matter, we set aside the impugned order and remand the matter to the Commissioner for fresh decision after considering and appreciating the submissions made by the appellants. The appeal is thus allowed by way of remand.
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2000 (7) TMI 742 - CEGAT, NEW DELHI
Refund - Unjust enrichment - Packing ... ... ... ... ..... the buyer. In the instant case, valuation of glass bottles while assessing them to Central Excise duty was done including the cost of gunny bags used for packing. The appellants rsquo refund claim is in respect of gunny bags which has gone into the value of glass bottles while assessing glass bottles to duty. No evidence has been produced by the appellants to show that the duty amount attributable to the price of gunny bags has been specifically worked out and not passed on to the liquor unit while pricing the bottles. The Auditor rsquo s note and Schedule-14 only show that the price of gunny bags is not passed on to the liquor units. This, in no way, is relevant to the valuation of the glass bottles. Nor does it show whether the duty amount attributable to the price of gunny bags has not been passed on. The appellants have, therefore, failed to establish that the amount of refund of Central Excise duty claimed by them has not been passed on. The appeal fails and is rejected.
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2000 (7) TMI 739 - CEGAT, KOLKATA
Penalty - Penalty not imposable for violation of new procedure ... ... ... ... ..... Rule 173Q was not correct in law since contravention of Rule 226 was punishable, thereunder, I do not find a case for imposition of penalty under Rule 173Q here so when 96ZO procedures were just introduced in August 1997 and thereafter deferred with effect from September 1997 and the alleged violations are of August and September, 1997. A new procedure enacted has to take time to sink in and ldquo teething troubles rdquo in implementing any new procedures could not be considered other than procedural or venial breach for which guidance from the Assistant Commissioner and not penalty visits are called for. I also find that no cause is for imposition of interest and or penalty as no violation took place, the penalty imposed under Rule 173Q cannot be upheld. 2. emsp In view of my finding, I allow the appeal with consequential benefits after setting aside the impugned orders of interest and penalty as imposed by the Assistant Commissioner and upheld by the Commissioner (Appeals).
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2000 (7) TMI 738 - CEGAT, MUMBAI
Modvat - Duty paying documents ... ... ... ... ..... y paying document with the goods, with authority to receive goods. In whose favour, it is sent is not relevant. Appellant rsquo s name is shown as Place of Delivery. It is acted upon. No objection is raised. Even if there is a defect, it is cured by the certificate of M/s. Cipla Ltd., that it has not taken Modvat credit. As per 1993 (67) E.L.T. 133 (T) Amal Rasayan Ltd. v. CCE supports it. Substantive requirement of modvat rules are complied is not in dispute. Beneficial credit cannot be denied, when the procedural omission of mentioning appellant, as consignee, can be cured as per 1992 (61) E.L.T. 362 (S.C.). So under these circumstances there are sufficient and satisfactory ground to set aside the impugned order, in which finding is contrary to show cause notice allegations as pointed out in the appeal memorandum in Para 1.1 and 1.2. Hence the following Order. ORDER The Impugned Order is set aside. Appeal is allowed with consequential relief according to law, as prayed for.
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2000 (7) TMI 736 - CEGAT, NEW DELHI
Production capacity based duty - Closure of factory ... ... ... ... ..... the stock of the ingots and billets of non-alloy steel. Further, the manufacturer has to inform in writing about the starting of production along with similar information. We find that in this case the appellants have informed about the closure of their unit to the Asstt. Commissioner on 12-12-1997 and about commencement of the production on 31-12-1997. Both the letters were delivered by hand and the stamp of the Asstt. Commissioner rsquo s office has been put on both the letters. It, therefore, cannot be said that the appellants have not complied with the conditions specified in the Rule. Further the factory had remained closed for a period of more than 7 days and as such they would be eligible for abatement for the period from 12-12-1997 to 31-12-1997. As the appellants had not sent the intimation on or before 8-12-1997 they will not be eligible for the abatement for the period from 8th to 11th December, 1997. The appeal is allowed partly with consequential relief, if any.
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2000 (7) TMI 734 - CEGAT, KOLKATA
Valuation - Undervaluation ... ... ... ... ..... Corporation, Japan, to US 29.00. The said Order of the Commissioner stands confirmed by the Tribunal in the case of M/s. Nidhi Distributors v. Commissioner of Customs, Calcutta vide Tribunal rsquo s Order No. 1107/CAL/2000, dated 26-7-2000. As such, when the Commissioner himself in respect of identical goods, has enhanced the value to US 29.00, we do not find the allegation of under-valuation in respect of the present importer, to be sustainable. Learned Advocate has also referred to Tribunal rsquo s decision in the case of Krishna Industries reported in 1998 (26) RLT 432 (CEGAT) which has observed that the price-variation of 12.6 can be legitimately treated as referable to quantity discount. In the present case, we find that the difference in assessable value as declared by the appellants and as arrived at by the Revenue is to the tune of 10 . As such, in view of the foregoing, we set aside the impugned Order and allow the appeal with consequential reliefs to the appellants.
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2000 (7) TMI 732 - CEGAT, KOLKATA
Confiscation and Penalty - Smuggled goods - Confiscation and Penalty ... ... ... ... ..... can be given. In the case, the very first step is missing, second step cannot be taken. In that case the Tribunal accepted the respondents rsquo stand that in the absence of any expert opinion holding the seized beetul nuts to be of foreign origin, findings of foreign character cannot be sustained. Similarly, we find that in the instant case also there is no opinion given by any expert person to the effect that the stones in question are of foreign origin. In any case the evidence showing the smuggled nature of the same is also missing. As such we find that the impugned order of the Commissioner is not sustainable. 9. emsp We also find that the VCRs have been recovered from the residential premises of the appellant and as such are covered by the provisions of the section 11G of the Act. 10. emsp In view of the foregoing we set aside the impugned order confiscating precious stones and VCRs and imposing penalty upon the appellant and allow the appeal with consequential relief.
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2000 (7) TMI 730 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit - Modvat - Natural Justice ... ... ... ... ..... and observations of the lower authorities and has urged for a direction to the applicants to make deposit of the duty amount for purposes of hearing the appeal on merits. 6. emsp I have carefully considered the rival submissions, and I am satisfied of the existence of a strong prima facie case in favour of the applicants. The lower appellate authority has passed its order on a ground which is, prima facie, different from the ground on which the adjudicating authority had decided the matter as well as the ground raised in the show-cause notice. There is also an element of breach of natural justice in the non-supply of all the documents relied upon in the show cause notice in spite of specific requests made by the party. Having regard to the prima facie strong case in favour of the applicants and also to their financial hardships as pleaded in the application, supported by documents, I allow this application unconditionally and post the appeal for regular hearing on 3-11-2000.
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2000 (7) TMI 729 - CEGAT, KOLKATA
Confiscation and penalty - Excess quantity than specified in invoices ... ... ... ... ..... e small scale unit and had balance of clearances to the tune of about Rs. 27 lakhs, which would be covered by the small scale exemption notification and which they would be entitled to clear at nil rate of duty. The respondents have also given reasonable explanation for the excess quantity loaded in the truck which was admittedly found to be accompanied with a central excise invoice. As such, as rightly concluded by the Commissioner (Appeals), the respondents cannot be said to have indulged into excess clearance on account of any mala fide on their part. The Revenue rsquo s contention that for said lapse some penalty should be imposed upon the respondents is not found favoured with by us inasmuch as the respondents were an SSI unit, had plausible explanation for excess clearance attributable to shrinkage of veneer in terms of the trade notice and lack of intention to evade payment of duty. No merits are found in the Revenue rsquo s appeal and the same is accordingly rejected.
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2000 (7) TMI 728 - CEGAT, KOLKATA
Modvat - Duty paying document ... ... ... ... ..... by the bill of entry delivered in the manufacturing unit for availing credit. We find that both the conditions are duly satisfied in the present matter. We also note that the Larger Bench rsquo s decision of Tribunal in the case of Balmer Lawrie - 2000 (116) E.L.T. 364 (Tribunal-LB) 2000 (36) RLT 666 (CEGAT) is not applicable to the facts of the instant case. Firstly because the said decision dealt with endorsement of invoices and secondly the endorsement being considered by the Larger Bench was in respect of one independent manufacturer to another independent manufacturer. In the instant case we find that M/s. TISCO has themselves endorsed the said bill of entry to one of their own divisions. As such it cannot be strictly called a case of availment of credit on the basis of the endorsed bill of entry. Board rsquo s circular also supports the respondents rsquo stand. As such in view of the foregoing we do not find any merits in the Revenue rsquo s appeal and reject the same.
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2000 (7) TMI 726 - CEGAT, KOLKATA
Demand - Clandestine manufacture and removal ... ... ... ... ..... nce. There is nothing on record to show that the appellants have been indulging into excess clearances without payment of duty. The appellants have satisfactorily explained the difference between the figures as reflected in annual financial account and those entered in RG-1 for each and every item. As such we hold that confirmation of demand of duty against the appellants is not justified. We also find favour with the appellants rsquo submissions that the demand is barred by limitation inasmuch as the show cause notice was issued on 5-12-1990 whereas the annual financial accounts are put to circulation within a period of two months from the close of the financial year. In these circumstances it cannot be said that there was any suppression on the part of the appellants so as to invoke the longer period of limitation. In view of the foregoing the appellant succeeds on merits as also on the point of limitation. Appeal is thus allowed with consequential relief to the appellants.
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2000 (7) TMI 725 - CEGAT, KOLKATA
Valuation - Identical goods - Demand - Limitation ... ... ... ... ..... assessable value by making a reasonable adjustment. Accordingly, after giving discount of about 25 and after adjusting the notional freight, he has rightly fixed the price at US 29 per piece. We see no reason to interfere in the same. 9. emsp As regards limitation, we find that we have already given a finding as regards the mis-declaration of the value of the imported items. It is only subsequently, on an investigation that the said value, so declared by the importer, was found to be on the lower side and on completion of the investigations, proceedings were started against the appellants. In these circumstances, the limitation applied by the Commissioner by invoking the larger period under the proviso to Section 28 of the Customs Act, 1962, is justified. We do not see any merits in the appellants rsquo contention that the demand is barred by limitation. We do not also find any reason to interfere in the penalty amount. 10. emsp In view of the foregoing, we reject the appeal.
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2000 (7) TMI 723 - CEGAT, KOLKATA
Notification - Amendment to - Effect of - Appellate Tribunal’s jurisdiction - Policy matter - SSI Exemption
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2000 (7) TMI 722 - CEGAT, NEW DELHI
Reference to High Court - Modvat - Duty paying document ... ... ... ... ..... primarily intended to prescribe a procedure to facilitate taking of credit when the original GP1 copy was lost or misplaced, by allowing attested photocopies of endorsed GP1s also to be eligible documents for taking Modvat credit, CBEC appears to have added to the list of eligible documents. There is, therefore, some force in the arguments advanced by the ld. Counsel for the applicant that the said Circular had in fact prescribed attested photocopies of endorsed GP1s as one of the documents for purposes of Rule 57G(2). 7. emsp Having regard to the above discussion, I find that certain questions of law referred to in Para 2 above has arisen from the impugned order. 8. emsp Accordingly, I allow this Reference Application and refer the aforesaid four questions of law to the Hon rsquo ble High Court of the Punjab and Haryana for their considered opinion in the matter under Rule 35G of the Central Excise Act, 1944. 9. emsp Registry is directed to take further action in the matter.
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2000 (7) TMI 720 - CEGAT, KOLKATA
Interest - Strictures against the Department. ... ... ... ... ..... ing so many letters to the Revenue, they did not receive any response from the department. It is observed that the deposits made by the appellants in terms of the stay orders passed under the provisions of Section 35F are liable to be refunded to the appellants immediately on success of their appeal. In the present case though the appeal was decided on 20-1-1995 and the miscellaneous application was disposed of on 27-8-1996 the amount of Rs. 3 lakhs deposited by the appellant remained with the department till 14-7-2000 when a cheque for the same was handed over. The conduct of the Revenue is not at all appreciated. 4. emsp In view of the foregoing facts we direct the Revenue, following the ratio of the decision reported in 2000 (126) E.L.T. 1225 (Tribunal) 2000 (39) RLT 226 (CEGAT) to make payment of interest at the rate of 12 per annum, starting from the period from three months from the date of the Tribunals rsquo order. Miscellaneous application is disposed of accordingly.
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2000 (7) TMI 719 - CEGAT, NEW DELHI
Modvat - Duty paying document ... ... ... ... ..... denied them the benefit of Modvat credit. He submits that in view of the above submissions, the impugned order may be set aside and the appeal may be allowed. 3. emsp None appeared for the respondent. 4. emsp I have heard the submissions of the ld. DR. I find that pursuant to issue of Notification No. 32/94, requirement of dealers/traders was to get them registered. However, we have seen instructions issued by the Board and the clarifications given that the invoices shall get regularised if the dealer/trader get himself registered on or before 31-12-1994. In the instant case there is a clear finding of the Commissioner (Appeals) that the traders/dealers did not get them registered even by 31-12-1994. In this view of the matter, I find that the order passed by the ld. Commissioner (Appeals) is bad in law. Registration of dealers/traders was the mandatory requirement and this requirement was not complied with by the respondent/assessee. In the circumstances, I allow the appeal.
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2000 (7) TMI 718 - CEGAT, NEW DELHI
Stay order - Modification of - Duty liability ... ... ... ... ..... have already furnished the bank guarantee to the extent of Rs. 1,93,580/-. Even the detention of the vehicles of the appellants had been made by the department. 6. emsp Therefore, keeping in view all these facts and circumstances, in our view it is a fit case where the earlier stay order dated 19-12-1994 passed by the Tribunal referred to above, deserves to be modified by allowing the appellants the waiver of the pre-deposit of the balance amount of Rs. 1,70,000/- for the purposes of hearing of the appeal on the condition that they will keep the bank guarantee alive and the detention of their vehicle will also continue till the disposal of the appeal on merits. 7. emsp In the light of the discussion made above, the application of the appellants for waiver of the pre-deposit of the balance amount of Rs. 1,70,000/- is allowed subject to the condition that they would keep the bank guarantee alive and the detention of their vehicle will continue till the disposal of their appeal.
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