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Case Laws
Showing 141 to 160 of 608 Records
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2004 (7) TMI 564 - CESTAT, NEW DELHI
Cenvat/Modvat - Capital goods ... ... ... ... ..... 4 of the Central Excise Tariff Act. The contention of the learned Counsel that air compressors procured by the respondents are of special type and stand covered under Heading 8414.80 and as such, clause (2) of the Table appended to Rule 57Q is not attracted, cannot be accepted being without any substance. The air compressors had been used by the respondents for air-conditioner plat and machinery and not for any special purpose. Clause 2 of the table appended to the above said Rule 57Q clearly enacts that compressors falling under Heading 84.14 and air-conditioner machinery shall stand excluded from the purview of capital goods. Therefore, no Modvat credit in respect of the goods in question could be legally claimed by the respondents under Rule 57Q of the Rules. The impugned order of the Commissioner (Appeals) cannot be sustained and is set aside. The order of the Adjudicating Authority is restored to that extent. 6. emsp The appeal of the Revenue accordingly stands accepted.
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2004 (7) TMI 563 - CESTAT, NEW DELHI
Cenvat/Modvat - Capital goods ... ... ... ... ..... The learned Counsel has also referred to the ratio of law laid down in Emgees Clubley v. CCE, Meerut, reported in 1999 (113) E.L.T. 189 wherein the Modvat credit in respect of air-compressor coils and spray guns and its spares mounted on the machine had been allowed. But the Board rsquo s circular and the law laid down in the aforesaid case had not been taken note of by the authorities below resulting in miscarriage of justice. Therefore, in my view, Modvat credit claim in respect of these goods deserves to be examined in the light of the above said circular and the case law referred to above, by the Adjudicating Authority as Board rsquo s circular particularly, prima facie covers the claim of the appellants. 4. emsp Consequently, the part of the impugned order appealed against is set aside and the matter is sent back to the Adjudicating Authority for re-examining the issue afresh after hearing both sides. 5. emsp The appeal of the appellants stands allowed by way of remand.
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2004 (7) TMI 562 - CESTAT, NEW DELHI
Demand - Limitation - Clandestine manufacture and removal ... ... ... ... ..... ven these assumptions lose their credibility in view of the appellant rsquo s submission that allegations have been made without taking into account appellant rsquo s capacity of production at various times. The specific case of clearance of preform to M/s. Superior Pet P. Ltd. remains explained by contemporaneous records. In these circumstances, we are of the opinion that the case is not based on evidence. The demand is also time barred. The appellant had been reporting the wastages of inputs to the jurisdictional authorities. Evidence on record do not show that those reports were false and that facts had been misstated or suppressed. Therefore, Proviso to Section 11A is not attracted. Since we have already held that duty demand is not sustainable, occasion for considering penalty, including against Shri Ashish Sethi, Director (under Rule 209A) does not arise. 8. emsp In the view we have taken above, the appeals succeed and are allowed after setting aside the impugned order.
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2004 (7) TMI 561 - CESTAT, BANGALORE
Stay/Dispensation of pre-deposit - Financially sick industrial unit ... ... ... ... ..... for disposal by granting a short date and the only relief they are seeking is to give direction to the authorities to implement the BIFR order. 4. emsp Ld. SDR submits that the appellant should pre-deposit the amounts to enable the Tribunal to hear the appeal. He submits that the fact of the appellant being under BIFR is no ground to grant waiver of pre-deposit. 5. emsp On a careful consideration we notice from the impugned order that the appellant has been declared financially sick unit and has gone under BIFR. BIFR has already given the direction to the authorities to compute the duty by granting them the benefit of exports already done and has also given a direction to waive interest. The prayer of the appellant is very short and in the facts and circumstances of the case the appeal could be listed for out of turn hearing by granting waiver of pre-deposit. The stay application is allowed and the appeal is directed to be listed for out of turn hearing on 1st November 2004.
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2004 (7) TMI 560 - CESTAT, CHENNAI
Cenvat/Modvat ... ... ... ... ..... period of six months. It is not as if they have not made any entry in the RG 23 Part A at all. Further, as could be seen from the order in original, the assessee took part of the credit pertaining to 7000 Kgs of input within six months and the remaining credit pertaining to 21,000 Kgs beyond the period of six months. In the circumstances, the bona fides of the assessee-respondents cannot be doubted. Therefore, I am of the considered opinion that their omission to make entry in RG 23A Part II within time in respect of part of the credit can not be taken too seriously, though the assessee could have made necessary entry in RG 23A Part II also within time, as there was payment of duty only on one occasion. In the background of the above facts, I am of the view that the assessee-respondents have substantially complied with the requirement of rules and hence credit cannot be denied to them. I, therefore, uphold the impugned order and reject the Revenue appeal. Ordered accordingly.
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2004 (7) TMI 559 - SETTLEMENT COMMISSION, CUSTOMS & CENTRAL EXCISE, M
Demand and penalty - Shortage of inputs ... ... ... ... ..... re removed clandestinely. This gives us an impression that even duty demand is vulnerable which the Applicant does not contest and in the spirit of settlement is prepared to pay. In view of the Applicant rsquo s demur that such duty may not be payable at all, we are inclined to grant total immunity to the applicant from interest. 9. emsp Fine, Penalty and Prosecution - In respect of fine, immunity has also been sought but it is not necessary as there is no seizure or confiscation involved. The disclosure being full and true, and all the Applicants having cooperated with the proceedings before the Commission, we grant immunities to all of them from penalty and prosecution. 10. emsp The above immunities are granted under Section 32K of the Central Excise Act, 1944. 11. emsp This order of settlement shall be void if the Settlement Commission subsequently finds that it has been obtained by fraud or misrepresentation of facts. 12. emsp All concerned should be informed accordingly.
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2004 (7) TMI 558 - CESTAT, MUMBAI
Cenvat/Modvat - Packaging material ... ... ... ... ..... msp Heard DR. 3. emsp I note that the approach of the Revenue is not supported by the law. Since the goods are assessed on the basis of Tariff value the question of ineligibility on account of non-inclusion of packing cost in the assessable value cannot arise in this case. Going by that logic, the credit would be unavailable in respect of goods which are subjected to specific rate of duty. There is no provision in the law to deny credit of packing material duty on products which pay duty at specific rate. 4. emsp The Revenue appeal is accordingly rejected.
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2004 (7) TMI 557 - CESTAT, MUMBAI
Penalty - Misdeclaration ... ... ... ... ..... based on no Test Report. They therefore cannot be upheld, are to be set aside, as based on no material to conclude that goods are not Rough as understood centre to finished. (e) When the assessment arrived at, that the goods are not lsquo rough marble slabs rsquo , is not upheld, and is set aside, and the goods under import are considered to be lsquo rough rsquo , as they are admittedly not finished a series of process subsequent to clearance are required to be undertaken, to convert these marble to lsquo finished slabs rsquo . Such steps are required, to be undertaken, is admitted. The imported goods therefore are lsquo Rough Slabs rsquo , The benefit of the DEEC licence and notification cannot be denied and penalties imposed upheld. 2. emsp Consequent to the finding herein, the orders of assessment and penalty set aside and goods ordered to be cleared on the licences and under the benefit of the notification. Penalty imposed ordered to be set aside. 3. emsp Appeal allowed.
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2004 (7) TMI 556 - CESTAT, MUMBAI
Demand - Wrong availment of benefit of Notification No. 78/90-C.E. - Penalty ... ... ... ... ..... ty of Rs. 1,000/- was imposed. The Commissioner (Appeals) in the impugned order confirmed this demand and the penalty. rdquo 3. emsp We have perused the Notification No. 78/90-C.E. We find that electrical transformer is not one of the items mentioned in the schedule to the notification. The appellant also could not state as to how the transformer is going to be a part of any of the items mentioned in the schedule. Clearly therefore it appears that the appellant availed of the benefit which is not admissible to him under the said notification. We do not find any infirmity in the order of the Commissioner (Appeals). Penalty imposed is for non-filing of classification declaration under Rule 173B. In these circumstances under which the goods have been cleared availing of concessional rate of duty without being actually eligible a penalty of Rs. 1,000/- is also not excessive. 4. emsp We see no infirmity in the order of the lower appellate authority. 5. emsp The appeal is rejected.
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2004 (7) TMI 555 - CESTAT, NEW DELHI
Demand - Sugar - Penalty ... ... ... ... ..... we assume that the rollback in the price of tyres manufactured by the appellant-company was occasioned on account of the directive issued by the Central Government, that by itself, without anything more, would not entitle the Appellants to claim a refund on the price differential ........ rdquo We also find no force in the submission of the Appellants that the refund of the duty claimed by them in respect of free sale sugar cleared by them as levy sugar in 1998 had been rejected by the Asstt. Commissioner on the ground that the refund has to be made by the Ministry of Food and Consumer Welfare. If the decision of rejection of the refund claimed passed by the Asstt. Commissioner was not legal nothing prevented the Appellants to go in appeal against the same. We, therefore, uphold the demand of duty. However, we agree with the learned Advocate that this is not a case warranting imposition of any penalty in view of the special circumstances. We, therefore, set aside the penalty.
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2004 (7) TMI 554 - CESTAT, MUMBAI
Demand - SSI Exemption - Value of clearances ... ... ... ... ..... e of goods on payment of duty is not to be ignored while reckoning first clearances under Notification No. 175/86-C.E. dated 1-3-1986 (SSI Exemption). 5. emsp We have carefully, considered the written submissions and heard the ld. DR Shri K.K. Srivastava. We observe that the Commissioner s contention that the clearances of duty paid goods should have been considered only from 20-5-1994 is not tenable. The clearances in the present case are to be taken into consideration for computation of value under notification No. 1/93 from 25-4-1994 and not from 20-5-1994. In the present case the benefit of Notification No. 1/93 was extended to the goods manufactured by the assessee from 25-4-1994 vide Notification No. 90/94-C.E. and the term first clearances should be relating to clearances of goods eligible for benefit of the notification from that date only. In the light of these observations the appeal of the Revenue is allowed and the order of the Commissioner (Appeals) is set aside.
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2004 (7) TMI 553 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
Settlement Application - Admission of ... ... ... ... ..... for the total duty liability on account of imports effected through Mumbai as well as Chennai ports. Since the jurisdiction of this Bench does not extend over Chennai, we cannot entertain the application for that portion of import effected through Chennai port. The applicant is accordingly advised to approach the Chairman of the Settlement Commission, New Delhi to assign that case to this Bench in terms of Section 32C of the Central Excise Act, 1944 read with Section 127N of the Customs Act, 1962, if they so wish. 15. emsp Accordingly, we allow the applications made in respect of imports effected through Mumbai Port to be proceeded with in terms of sub-section (1) of Section 127C of the Customs Act, 1962. Duty amounting to Rs. 72,77,224/- said to be already deposited covering Rs. 1,18,00,000/- by the applicant is allowed to be adjusted against the admitted duty liability. 16. emsp Attention of all concerned is drawn to sub-section (2) of Section 127F of the Customs Act, 1962.
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2004 (7) TMI 552 - CESTAT, MUMBAI
Cenvat/Modvat ... ... ... ... ..... ce that the goods have actually been purchased from the importers by the appellants and duty paying documents as well as the material has in fact been received in the factory of the appellants. In fact, a certificate from the Superintendent of Central Excise, bears the testimony to the fact that, the goods and the duty paying documents have been received in the appellants factory. Therefore, substantial right of Modvat credit cannot be denied even if the duty paying documents contains deficiency. 6. emsp I note that, since the basic fact of receipt of duty paid goods and their utilisation in the manufacture of final goods are not in dispute and also, there is no allegation that duty paying documents had gone into the hands of some one else other than the recipient of the imported goods. I hold that the duty paying documents is acceptable as valid document and the credit cannot be denied. Accordingly, I allow the appeal and set aside the orders passed by the lower authorities.
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2004 (7) TMI 551 - CESTAT, MUMBAI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... ely, steel bars. The credit was denied on the ground that the invoices on the strength of which the credit was taken are invalid. It has been held by the lower authorities that the address of the consignee shown on the invoice is M/s. Tirupati Enterprises, New Bombay, whereas the material is delivered to M/s. Agro Forgings (Baroda) Pvt. Ltd., who are the appellants. It was pleaded by the appellants that it was a transit sale and the material was directly received from the supplier rsquo s factory in their factory. 4. emsp Heard the ld. DR. 5. emsp In this case, duty paying documents contained major irregularities in as much as the duty paying documents do not show that the inputs were consigned to them. On the contrary, it is seen that, the consignment was addressed to M/s. Tirupati Enterprises and based on the said invoices, the appellants cannot get the benefit of Modvat credit. Accordingly, I hold that the appeal is without any merits and accordingly, the same is rejected.
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2004 (7) TMI 550 - CESTAT, MUMBAI
Confiscation and penalty - Valuation ... ... ... ... ..... condition or consideration relating to the production or marketing of the imported goods shall not result in rejection of the transaction value... rdquo Therefore, the Demo clause enhancing to promote the business of supplier, i.e. marketability cannot be a reason for arrival to reject the transaction value. The rejection of Transaction value therefore cannot be upheld. (g) Negotiated prices with special discounts claimed, are acceptable, following the Apex Court ruling in case of Basant Industries - 1996 (81) E.L.T. 195 (S.C.) and we find force in reliance on the decision of Eicher Tractor Ltd., 2000 (122) E.L.T. 321 (S.C.) placed by the appellants to hold that transaction value as per invoices in this case has to be accepted it cannot be departed from. (h) Consequently the duty demands, consequent liability to confiscate and penalty cannot survive. The orders are required to be set aside and appeal allowed. 2. emsp Ordered accordingly. 3. emsp Appeals consequently allowed.
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2004 (7) TMI 549 - CESTAT, KOLKATA
Appeal - Retention of ... ... ... ... ..... as intimated that Shri Prakash Chharia has filed an appeal before the CESTAT, Mumbai against the Order-in-Original No. KDL/Commr./34/2003, dated 4-6-2003 passed by the Commissioner of Customs, Customs House, Kandla. In this case, since the party has filed a retention application and has also filed an appeal before CESTAT, Mumbai against the same order, this is the abuse of the process of law. Accordingly, we reject the retention application as also the appeal filed by the appellant in this case as not maintainable.
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2004 (7) TMI 548 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... ie view that from the language of the Notification, it appears that the goods in question are not eligible to the benefit of the above said Notification and therefore, no prima facie case for waiver has been made out by the applicants. However, keeping in view the facts and circumstances, we direct the applicants to pre-deposit Rs. 1 lakh towards the duty demand within 8 weeks from the date of receipt of the order. On such pre-deposit, the balance duty shall stand waived and its recovery stayed during the pendency of the appeal. Failure to comply with the terms of the stay order shall result in vacation of stay and rejection of the appeal without prior notice. Compliance to be reported on 5-10-2004.
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2004 (7) TMI 547 - CESTAT, NEW DELH
Evidence - Statement, Retraction of - Burden of proof - Clandestine removal ... ... ... ... ..... of duty in absence of other evidence regarding excess and shortage of raw material etc. In the present case there was excess of raw material as well as the final product. The raw material was not entered in the statutory record. These slips were not prepared by uneducated employees but these are computer-generated record and the Managing Director of the firm admitted that the entries in these slips relate to the clearance of various brands of Gutkha. Therefore, the ratio of this decision is not applicable to the present case. In the case of Aar Kay Industries, the Tribunal held that without physical verification demand cannot be raised regarding removal of goods without payment of duty. In the present case physical verification of the stocks showed the excess of inputs as well as final product. In these circumstances, the ratio of the above decision of the Tribunal is not applicable in the facts of the present case. In view of the above discussion, the appeals are dismissed.
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2004 (7) TMI 546 - CESTAT, CHENNAI
Appeal by Department - Maintainability of ... ... ... ... ..... are against an order (of the Commissioner) which neither treated Shri M.S. Jain as manufacturer of the goods nor held him liable for penalty. Yet the Revenue would not prefer appeal against Shri M.S. Jain. The central figure in the Board rsquo s review order has not been arraigned before us by the Revenue. In such circumstances, these appeals cannot be decided on merits. This case stands on a stronger footing than Sompura Ceramics (supra) and Supreme Electrical Appliances (supra) on the maintainability issue. Following the view taken in the said cases, we hold that these appeals of the Revenue, wherein clearances of goods by the 21 units are sought to be clubbed for the purpose of denial of SSI exemption on grounds integrally connected with the role of Shri M.S. Jain, cannot be maintained for want of appeal as against Shri M.S. Jain. The case law cited by ld. SDR has been examined. It is not on the issue which we have considered. The appeals are dismissed as not maintainable.
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2004 (7) TMI 545 - CESTAT, KOLKATA
Order - Speaking order ... ... ... ... ..... except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be. 3. emsp In the present case, the Commissioner (Appeals) has held that the appellant-company has not come up with any material evidence that they have been discriminated by the authority concerned who had not used his discretion fairly. The appellant-company has assailed the Order of the Commissioner (Appeals) on the ground of denial of principles of natural justice, as they were heard by his predecessor. 4. emsp We have gone through the Order of the Commissioner (Appeals). We find that the Commissioner (Appeals) has rejected the appeal on the ground that communication from the Deputy Commissioner, LCS, Raxaul was not an Order or decision for the purpose of Section 128 of the Customs Act, 1962 as well as on merits. We find that the Order of the Commissioner (Appeals) is well-founded in law and uphold the same. The appeal is rejected.
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