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Case Laws
Showing 161 to 180 of 558 Records
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2004 (10) TMI 480 - CESTAT, BANGALORE
Penalty - Export of garments - Misdeclaration ... ... ... ... ..... rred the matter to them. In the case of Stonemann Marble, the Tribunal has held that unless the goods are confiscated under Section 113, the penalty cannot be imposed. In the present case, the Apparel Export Promotion Council has dropped the proceedings, by accepting the explanation and finding the violation to be a mere irregularity, which is condonable by a warning. They have held the exports under Category 641 to be proper. The test results produced by the appellants are in their favour. In these peculiar circumstances of the case and in the light of the judgments, it cannot be held that the Commissioner has satisfied himself for imposing penalty under Section 114(i) of the Customs Act. The Customs have also accepted the exports for payment of draw back and duty drawback has been paid to the appellants as seen from the documents filed. In such facts and circumstances and in the light of the judgments cited, no penalty is leviable and the imposition of penalty is set aside.
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2004 (10) TMI 479 - CESTAT, KOLKATA
Smuggling - Rice seized by BSF ... ... ... ... ..... forwarded along with apprehended persons. The findings and the facts are totally self-contradictory submitted by the BSF personnel. The show cause notice issued to the appellants is also contrary to the facts of the case. The appellants are the dealers and petty shopkeepers. There is no iota of evidence that the appellants attempted to export rice from India to Bangladesh. So far the possession of rice is concerned, in the show cause notice, the authorities have admitted that the goods were in their charge. Therefore, the respondents have admitted in the show cause notice the possession of the goods with the appellants. The respondent has failed to prove that the appellants had attempted to export the rice to Bangladesh. Consequently, the appellants are entitled to get the possession of rice. Therefore, the order of confiscation of rice is bad in law. The appeals deserve to be allowed. 9. emsp Consequently, I allow both the appeals with consequential relief to the appellants.
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2004 (10) TMI 478 - CESTAT, MUMBAI
Classifiaction ... ... ... ... ..... r the different headings of Central Tariff have to be assessed. Orders of the lower authority on classification are upheld and the orders of CC (Appeals) directing assessment of each component on merit is set aside. (b) The submission of the Respondents, before us on the processing conducted, subsequent to import do not impress us. These are not process incidental to complication of manufacture of the components as pleaded is rejected. The process are found to be in nature of unpacking the components preparing into individual pieces and preparing them for assembly of the calculator. There was no material before the CC (Appeals) or before us, to come to and conclude or uphold that the subsequent process undertaken after import amount to completion of semi-finished components. The plea made and the Commissioner order are not upheld. 3. emsp In view of the findings, the Revenue appeals is allowed, the CC (Appeals) order is set aside and the Addl. Commissioner order is confirmed.
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2004 (10) TMI 477 - CESTAT, MUMBAI
Camera vis-a-vis Computer ... ... ... ... ..... tion slide or photographic image with extremely accurate shading, smooth ramped background, vivid colours, sharp text and bright graphics. 6. emsp On careful consideration of the ground in appeal and on perusing the literature, we are of the view that, the imported goods are in the nature of photographic cameras having certain advance features. Though it uses the automatic data processing machine, the data processing component is only to enhance and refine the main function of production of a photographic image. Hence the entire function is directed towards capturing a photographic image of the object and converting it into a photograph to be recorded on a film or CD. Hence the classification under Heading No. 9006.53 as claimed in revenue rsquo s appeal in our view is the most appropriate in preference to Heading No. 8471.50, accepted by the Commissioner (Appeals). Accordingly, we allow the revenue appeal and set aside the impugned order passed by the Commissioner (Appeals).
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2004 (10) TMI 476 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Demand ... ... ... ... ..... nefit of the same notification, it is to be treated as if no duty has been paid on the same and the condition is not fulfilled. On the other hand, the appellant rsquo s contention is that they have paid duty on the yarn and fibres which are the basic inputs as such benefit would be availed to them. Shri M.H. Patil, Advocate, submits that a reading of the said condition makes it clear that inputs should have paid the appropriate duty of excise, read with any notification for the time being in force. As such, even if the grey fabrics has been cleared under the notification, the same is to be considered as if appropriate duty has been paid on the same. Reference has also been made to the Boards Circular that in such case the benefit of notification should not be denied to the processed fabrics. After hearing ld. JDR, Shri. R.B. Pardesi, we are of the view that the appellants have been able to make out, prima facie, case in his favour, and allow the stay petition unconditionally.
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2004 (10) TMI 475 - CESTAT, KOLKATA
Stay/Dispensation of pre-deposit ... ... ... ... ..... ted 29-5-2003 was passed and which has not been refunded by the Department till date. In view of this he submits that they may be dispensed with payment of duty and the penalty imposed in the Commissioner rsquo s (Appeals) present order which is in dispute. 2. emsp Shri J.R. Madhiam, ld. JDR reiterates the findings of the Commissioner (Appeals) in OA, dated 31-10-2003. 3. emsp We find that this product was classified under Tariff sub-heading 9018 by the Department and this continued till the Department issued a show-cause-notice-cum demand after more than ten years. The Commissioner (Appeals) in his Order dated 29-5-2003 again held it to be classified under Heading 90.18. In the present Order-in-Appeal nothing has been discussed why the Department has differed from its earlier classification. The issue is debatable and keeping in view the submissions in both the sides, we dispense with the pre-deposit of duty and penalty. The case to come up for regular hearing on 22-12-2004.
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2004 (10) TMI 474 - CESTAT, CHENNAI
Refund claim ... ... ... ... ..... o ble Tribunal, and the above referred instructions of the Board, I hold that the appellants are, in principle, entitled to refund of excess duty paid on a higher price than what was prevailing at the depot/consignment agent rsquo s premises, at the time of removal from the factory to these places. rdquo There is no evidence of the above order dated 10-11-2003 of the Commissioner (Appeals) having been set aside by this Tribunal or any higher judicial forum. 3. emsp As there is no factual difference between the cited case and the instant case of the assessee, the impugned order of the Commissioner (Appeals) requires to be set aside to the extent it relates to the claim for refund of the aforementioned amounts. It is ordered accordingly and this appeal is allowed. Consequently, the claim for refund of the aforesaid amounts stands allowed, subject to the condition that the claimant establish before the original authority that the claim is not his by the bar of unjust enrichment.
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2004 (10) TMI 473 - CESTAT, NEW DELHI
Classifiaction ... ... ... ... ..... paper drums but rather as boxes, which are in the shape of drums prepared mainly from the plywood. The round shape of the box has been made of paper board which has been affixed to the top and bottom lids made of plywood. Without top and bottom plywood lids, the product of the appellants would be nothing but a pie of paperboard. The box/drum is in fact made of plywood lids. 4. emsp The Board Circular No. 18/90-CX, dated 9-7-1990 referred by the Consultant of the appellants, does not advance the plea of the appellants in any manner. This circular pertains to the classification of composite paper containers supplied for use as defence ammunition stores. The circular apparently pertains to different products. 5. emsp In our view, the product in question manufactured by the appellants has been correctly classified under sub-heading 4410.90 of the CETA by the lower authorities. The impugned order is, therefore, upheld. The appeal of the appellants is dismissed being without merit.
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2004 (10) TMI 472 - CESTAT, MUMBAI
Valuation - Old and used photocopiers - Confiscation - Redemption fine - Import, licensing - Penalty
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2004 (10) TMI 471 - CESTAT, BANGALORE
Foam - Coir industry exemption - PU foam and quilted PU foam ... ... ... ... ..... Collector of Customs v. Wipro Ltd., decided that oxygen and hydrogen would not be covered under the Notification 115/75, because prior to its amendment, the notification covered only goods falling under item 68 of the Tariff and at that time, oxygen was not covered under Item 68 and the Board clarified in its clarification dated 4-5-1988 that the exempted goods mentioned in the Notification 115/75 cover only paras item 68 goods. In view of the Board rsquo s clarification, the Tribunal took the decision that all goods are not covered by Notification No. 115/75. However, in view of the interpretation of the same Notification by Hon rsquo ble S.C., we are not inclined to accept the above decision of the CEGAT. We would like to reiterate that any product irrespective of its classification manufactured by a factory coming under coir industry will get the benefit of exemption Notification 115/75, unless it is specifically excluded. In view of the above findings we allow the appeal.
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2004 (10) TMI 470 - CESTAT, MUMBAI
Yarn - Air mingled yarn - Excisability of ... ... ... ... ..... factured prior to March 99 when the goods in question was non excisable. In terms of the Supreme Court decision in the case of Collector v. Vazir Sultan Tobacco Co. Ltd., 1996 (83) E.L.T. 3 (S.C.), the said yarn manufactured prior to March cannot be put to duty of excise. 4. emsp We find that the said issue was not raised before the original adjudicating authority. However, the same being a legal issue, the appellants should be allowed to raise the same. For the above purpose, we remand the matter to the Assistant Commissioner, who would verify the records maintained by the appellants and re-quantify the demand of duty accordingly. Penalty would be re-determined after quantifying the amount of duty, if any. The appellant rsquo s prayer for allowing them Cenvat credit may also be considered by the original adjudicating authority while disposing the matter in the demand proceedings. 5. emsp The appeal is therefore allowed by way of remand and stay petition is also disposed off.
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2004 (10) TMI 469 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Demand and penalty ... ... ... ... ..... umstances, the contention of the applicants that inflated figures were given for the purpose of taking loan, prima facie, is not accepted. We also note that in spite of show cause notices having been issued for producing the balance-sheet no reply for the same was sent and hearings were not attended by them. Therefore, prima facie, there is no violation of principles of natural justice. The balance-sheet produced before us is the balance-sheet for the previous period and thus, the same is not acceptable to support the plea of financial hardship. Having regard to the totality of the facts and circumstances of the case, we direct the applicants to deposit a sum of Rs. 30 lakh within 8 weeks and on such deposit, the pre-deposit of remaining amount shall stand dispensed with and recovery of the same will remain stayed during the pendency of the appeal. Failure to comply with this direction will result in dismissal of the appeals. To come up for reporting compliance on 29-12-2004.
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2004 (10) TMI 468 - CESTAT, NEW DELHI
Valuation - Labour and packing charges ... ... ... ... ..... e Commissioner (Appeals), vide Order-in-Appeal No. 105/CE/ GZB/04, dated 13-8-2004, has held that the sum of Rs. 10 per Meter is only towards freight and insurance charges. 4. emsp We have considered the submissions of both the sides. It is not indispute that the U.P. Power Corporation has paid Rs. 10/- per Meter in addition to the Respondents. The break-up of Rs. 10/- provided by the Respondents clearly shows that freight charge is only Rs. 4.60 per Meter whereas the remaining amount is towards labour charges and Inner box and Outer box. Mere fact that the break-up of duty different charges comes to Rs. 10.50 will not make the break-up unacceptable as at no stage this break-up was retracted by the Respondents. Only the transport charge i.e. Rs. 4.60 per Meter is not to be included in the assessable value. The other charge is required to be included in the assessable value of the Meter. In view of this we set aside the impugned order and allow the appeal filed by the Revenue.
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2004 (10) TMI 467 - CESTAT, NEW DELHI
Production capacity based duty ... ... ... ... ..... Levy) of the Central Excise Act. We find that the Commissioner rsquo s order was passed in view of the fact that power supply to the unit had been disconnected by the State Electricity Board. There is no material to contradict that position. There is no error in the impugned order. The appeal fails and is rejected.
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2004 (10) TMI 466 - CESTAT, BANGALORE
Stay/Dispensation of pre-deposit - Erroneous refund - Recovery of - Demand ... ... ... ... ..... emented, therefore, the recovery proceedings are just and proper. Learned SDR distinguished the judgment of Madhumilan Syntex in the matter. 3. emsp On a careful consideration of the matter, we are of the considered opinion that any refund which is granted is required to be recovered by issue of show cause notice under Section 28 of the Act. The Department has issued show cause notice and it is pending adjudication. In the mean time, the Department ought not to have proceeded to recover the amounts. The appellants have made out a prima facie case in their favour and therefore the stay application is allowed granting waiver of pre-deposit of the amounts which are under recovery. In terms of Larger Bench judgment in the case of IPCL 2004 (169) E.L.T. 267 (T-LB) , the Revenue should not recover the amounts till the disposal of the appeal. As the amounts are high, appeal shall come up for hearing on 4-4-04. Miscellaneous application is in fact a stay application which is allowed.
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2004 (10) TMI 465 - CESTAT, BANGALORE
Adjudication - Natural justice - Evidence - Remand - Order of Appellate Tribunal ... ... ... ... ..... ill be able to establish their case. This submission requires careful consideration. In the present case, we have seen violation of principles of Natural Justice as the paper books consisting of about 817 pages of evidence has not been considered by the Commissioner. Therefore, the impugned order is not just and legal. On this ground alone, the impugned order is to be set aside as it is not a speaking order. In view of the pleas raised by the appellants and taking into consideration of the facts and circumstances of the case, we set aside the impugned order and remand the matter to the Commissioner for de novo consideration to be decided in the light of principles of Natural Justice. The Commissioner is directed not to en cash the Bank Guarantee till the disposal of the appeal. As the revenue involvement is high in the matter, the Commissioner is also directed to expeditiously decide the matter within a period of 4 months after giving an opportunity of hearing the appellants.
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2004 (10) TMI 464 - CESTAT, BANGALORE
SSI exemption - Brand name - Penalty - Bona fide belief ... ... ... ... ..... n filed on behalf of the appellants. The explanation given by the appellant is that ldquo Ratna rdquo is traditionally used as a prefix word for all their family concerns such as Ratna Plastics Ltd., Ratna Timber Depot, Ratna Ice Factory, Ratna Cold Storage etc., and they were under bona fide belief that ldquo Ratna rdquo is not a brand name. They submit that there was no intention to evade payment of duty. 3. emsp We accept the plea of bona fide belief in the use of name ldquo Ratna rdquo and, therefore, agree with the appellants that this is not a fit case for penalty accordingly, we set aside the same. The appeal is partly allowed as above.
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2004 (10) TMI 463 - CESTAT, CHENNAI
Cenvat/Modvat - Capital goods ... ... ... ... ..... ion integral to the process of manufacture of cement. In this view of the matter, the benefit of Modvat credit cannot be extended to the above items. The decision of the Commissioner (Appeals) in relation to the said items is affirmed. 7. emsp The last item is Hydraulic Pump. The appellants have claimed that this item was used in lsquo poclain excavator shovels. rsquo It is seen from the impugned order that the function of lsquo poclain excavator shovels rsquo was not clearly spelt out by the assessee. In the present appeal, it is claimed that lsquo poclain excavator shovels rsquo are in the nature of bulk-material-handling equipments integrated with the process of manufacture of cement. However, the appeal is silent on how the use of the equipment is integral to the manufacturing process. For this reason, the denial of capital goods credit to Hydraulic Pump is affirmed. In the result, the challenge to the order of the Commissioner (Appeals) fails and the appeal is dismissed.
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2004 (10) TMI 462 - CESTAT, NEW DELHI
Re-importation - Export under drawback/rebate/bond ... ... ... ... ..... ion will depend upon the nature of the goods. Machinery items may be identified from their nos. and marks but that cannot be taken as a universal rule. Each item must be identified by methods appropriate to it. There cannot be an inflexible rule. In the present case, the export was on consignment basis. The weight, value and description given in the export and import documents are the same. It is also to be noted that even when the goods were got verified upon re-import, by experts by the Customs authorities, description and value were found to tally except for variation in value on account of exchange rate variation. There is also no dispute that consignment is of tanzanite. In the circumstances, I am of the opinion that the authorities were not justified in not allowing duty free clearances of the consignment. The impugned order is, therefore, set aside and the appeal is allowed. The amounts paid by the appellant towards duty, fine and penalty, etc. shall be returned to it.
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2004 (10) TMI 461 - CESTAT, BANGALORE
Demand - Invalid invoices ... ... ... ... ..... ereas the duty was paid on 30-11-1999. An invoice should show the time and place of removal correctly. Since this has not been done, it is alleged that duty itself has not been discharged on the goods. There is no finding that the impugned goods are non-duty paid. There is however a finding that Central Excise Rules have been contravened. We observe that duty cannot be demanded twice on the same goods. The demand for duty therefore has to be set aside. In identical circumstances, the Tribunal in the case of Altos India Limited v. Collector of Central Excise, New Delhi 1996 (85) E.L.T. 147 (Tribunal) held that duty cannot be demanded when there is discrepancy in a Gate Pass unless clandestine removal is established. However, we observe that contravention of Central Excise Rules is established. 5. emsp Demand for duty is set aside. Having regard to the facts of the case, we reduce the penalty to Rs. 5,000/- (Rupees Five thousand only). 6. emsp The appeal thus is partly allowed.
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