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Case Laws
Showing 161 to 180 of 679 Records
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2007 (2) TMI 566 - CESTAT, AHMEDABAD
Clandestine removal - Proof of ... ... ... ... ..... and as shown in RG-1 register. There is neither any statement of any authorized officer of the company to show that the differential quantity stand removed by them clandestinely, nor is there any other independent evidence on record to corroborate the charge of clandestine removal. It does not need the help of any authority to say that such an allegation of clandestine removal is required to be established by the Revenue by production of satisfactory or positive evidence and not on the basis of assumption and presumption. Difference in balance sheet figures and RG-1 figures may lead to some doubt but cannot held to be conclusive evidence so as to arrive at an inevitable finding of clandestine removal. As such confirmation of demand of duty or imposition of penalty on the appellants is neither justified nor warranted. Accordingly, the impugned order is set aside and the appeal is allowed with consequential relief to the appellants. (Operative part pronounced in the Open Court)
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2007 (2) TMI 565 - CESTAT, AHMEDABAD
Rectification of mistake (ROM) - Dutiability of single yarn ... ... ... ... ..... further taken note of the fact that inasmuch as duty has been paid on the doubled, cabled and multi-folded yarn which would be exempted if duty stands paid on the single yarn, and has directed the authorities below to neutralize such duty paid on doubling yarn against the appellant the duty liability on single yarn. 2. emsp Revenue rsquo s contention in ROM application is that the above order does not relate to the issue involved inasmuch as the same was single yarn contained in the waste arisen during the course of doubling. 3. emsp We find that the Tribunal has exactly decided the same issue, when it ordered that single yarn before its captive consumption is required to pay duty. This clearly shows that the waste arising out during the course of doubling would be automatically included in the duty liability. As such, we do not find any merits in the application requiring any rectification. Accordingly, ROM application is rejected. (Dictated and pronounced in the open Court)
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2007 (2) TMI 564 - CESTAT, AHMEDABAD
Demand - Compounded levy scheme ... ... ... ... ..... by the proper officer vide bottle seal No. 006794 rdquo during 17-12-99 to 23-12-99 and opened on 24-12-99. It is not understood that when the stenter was sealed in accordance with the provisions of law and the authorities below are not expressing any doubt about the correctness of the sealing of the said stenter, how the same can be put to use during the said period. There is no allegation either in the show cause notice or any indication in the impugned orders that the Central Excise officers, who have put the seal on the said stenter, were in connivance with the appellants. As such in the absence of any challenge to the fact of sealing during the said period, we are of the view that confirmation of demand of duty on the ground that the said stenter was not closed but was being used by the appellants has no legal basis. Accordingly, we set aside the impugned order and allow the appeal with consequential relief to the appellants. (Operative part pronounced in the Open Court)
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2007 (2) TMI 563 - CESTAT, MUMBAI
Demand - Limitation - Penalty - Imposition of ... ... ... ... ..... cause notice should be issued if any short payment of duty is made before service of the said notice. It would be significant to note that the show cause notice seeking to impose penalty on the appellants was issued nearly two years after payment was made. Therefore, the notice is said to has been wrongly issued despite the provisions of Section 11A(2B) and the demand is barred by limitation. The appellants further relied upon the following decisions (i) emsp Hon rsquo ble Supreme Court decision in the case of CCE v. Rashtriya Ispat Nigam Ltd. - 2004 (163) E.L.T. A53 (S.C.) (ii) Hon rsquo ble Bombay High Court decision in the case of CCE v. Gaurav Mercantiles Ltd. - 2005 (190) E.L.T. 11. 4. emsp Having considered the various conditions raised by the appellants and the case laws relied upon by them, I am of the view that the authorities below have erred in passing the impugned orders and the same is liable to be set aside. Accordingly, appeal is allowed. (Pronounced in court)
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2007 (2) TMI 562 - CENTRAL INFORMATION COMMISSION
RTI - Information requested was related to search and seizure - Central Excise Commissionerate, in how many cases, Show Cause Notices have been issued and for what amount – denial of information – Held that:- Respondents have erred in conjuring up all the manner of imaginary hardship to third parties and linking the information to exemption under Section 8(1). These provisions are not attracted to the present case - information is already in the public domain and is decidedly related to public interest, in so far as the public has a right to know the result of the public authority’s campaign against unlawful activity such as duty-evasion, etc., for which the public authority has been created in the first place - appeal is allowed.
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2007 (2) TMI 561 - CESTAT, NEW DELHI
Rectification of mistake - Cenvat/Modvat - Duty paying documents ... ... ... ... ..... relevant period. 4. emsp Considered the submissions made by both the sides at length and perused the records. It is seen from Para 5 of the order of the Tribunal dated 6-10-06, the Tribunal has come to the conclusion that when the manufacturer of the goods who is supposed to clear the dutiable products from his factory can prepare the duty paying document in triplicate only, and it is mandatory to retain the triplicate copy of the invoice with him, the applicant/appellant is not eligible to avail the Modvat credit on such attested triplicate copy. The case law cited by the learned Counsel during the hearing of the final appeal and today do not refer to this aspect of law, which is mandatory and has to be kept in mind while availing the Modvat credit. Hence, it is seen that there is no mistake apparent on record in the order dated 6-10-06. Accordingly, the application for rectification of mistake filed by the applicant is dismissed. (Dictated and pronounced in the open Court)
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2007 (2) TMI 560 - CESTAT, MUMBAI
Appeal - Limitation - Correction of clerical or arithmetical mistake ... ... ... ... ..... of the Hon rsquo ble Supreme Court in the case of Anchor Pressings (P) Ltd. 1987 (27) E.L.T. 590 (S.C.) laying down that relief not claimed during assessment proceedings by an assessee, Assessing Officer is under obligation to grant statutory relief even if not claimed by assessee. However, we find that as recorded in para 2 of the said judgment there was an appeal by the assessee against the assessment order. However, in the present case there is no appeal against the order of the Commissioner. If the appellant would have challenged the earlier order of Commissioner they were admittedly at liberty to raise the ground of their claim to exemption notification. 11. emsp In as much as, second appeal is only an extended limit of the first appeal and having held that the earlier order had become final and the delay being considerably long, does not call for condonation, we dismiss stay petition as also both the appeals. COD application also gets disposed of. (Pronounced in court)
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2007 (2) TMI 559 - CESTAT, CHENNAI
Appeal to Appellate Tribunal - Limitation - Exemption ... ... ... ... ..... ect provision of law which ought to have been invoked for the benefit. All the Departmental authorities and this Tribunal held against the assessee. The Apex Court allowed the assessee rsquo s appeal after holding that a benefit available to the assessee was not to be denied to them on the ground that they had claimed it under a wrong provision. We are of the view that the ratio of the Apex Court rsquo s decision is applicable to the present case also as rightly held by learned Commissioner (Appeals). Claiming a benefit under a wrong provision of law is comparable to not claiming (under the correct provision) at all. The respondents claimed the benefit of Customs Notification No. 20/2006 in respect of CVD at a later stage. The appellant has no case that the respondents were not eligible for the benefit. On these facts, we have to sustain the decision of the Commissioner (Appeals) and it is ordered accordingly. 6.The appeal is dismissed. (Dictated and pronounced in open Court)
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2007 (2) TMI 558 - CESTAT, MUMBAI
Order - De novo order - Finality of ... ... ... ... ..... giving any finding on the issue before him as per Tribunal rsquo s remand direction viz. on the issue as to whether the relationship had affected the price, he has entirely departed from it by giving a finding on addition of 20 Lakhs US by way of technical know-how fee which was not the issue to be decided by him in terms of Tribunal Order No. A/1116/WZB/2004/C-I, dated 28-6-2004 2005 (179) E.L.T. 322 (T) . We also find force in the submission of the appellants that since the Deputy Commissioner to whom the case was remanded by the Tribunal for the purpose of recording a finding as to whether the relationship had influenced the price, and no such finding has been recorded, the order dated 24-4-2006 of the Deputy Commissioner has become final in the absence of any challenge by the Revenue. Therefore, the Commissioner (Appeals) could not have sent back even this issue for fresh determination. We, therefore, set aside the impugned order and allow the appeal. (Dictated in Court)
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2007 (2) TMI 557 - CESTAT, AHMEDABAD
Cenvat/Modvat - Duty paying documents - Deemed credit ... ... ... ... ..... above mentioned 8 invoices. 4. emsp Learned Advocate submits that violation, if any, of the condition can be attributed only in respect of goods supplied under Invoice No. 1035 dated 24-1-99 and on this ground denial of deemed credit on all the 8 invoices is not legal. He concedes to the denial of credit in respect of invoice No. 1035 dated 24-1-99. 5. emsp The issue has a long chequered history. The adjustment of pending amounts while making payments for invoice is a trade practice. I hold that the explanation for the discrepancy in total amount in respect of 8 invoices and the actual payment as furnished by the learned Advocate is acceptable. Learned Advocate is conceding the issue in relation to one of the Invoices with No. 1035 dated 24-1-99 and therefore, the deemed credit in respect of 7 invoices (except No. 1035 dated 24-1-99) is held admissible and accordingly ordered. 6. emsp The appeal is partly allowed on the above terms. (Dictated and pronounced in the open Court)
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2007 (2) TMI 556 - CESTAT, BANGALORE
Appeal to Commissioner (Appeals) - Limitation - Condonation of delay ... ... ... ... ..... fully considered the submissions and find that the appellants have given several reasons which resulted in delay of 25 days. The Commissioner has power to condone the delay up to 30 days. The appellants have stated that the matter pertains to 1997 relating to import in question. They were in correspondence with the Joint Commissioner of Central Excise Visak seeking for several documents and records to file the appeal. The delay was made by the Department in giving the details. They have also listed out several other reasons. The reasons given by the party are genuine and the Commissioner ought to have considered the same and condoned the delay. The reasons given for condonation of delay in filing the appeal before the Commissioner is accepted and the impugned order is set aside and appeal remanded to the Commissioner to decide the case on merits within two months from the receipt of this order by following principles of natural justice. (Pronounced and dictated in open Court)
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2007 (2) TMI 555 - CESTAT, CHENNAI
Penalty - Imposition of - Confiscation and redemption fine ... ... ... ... ..... The appellant has admitted that no such intimation had been given. In the circumstances, learned Commissioner rightly ordered confiscation of the goods under Section 111(p) of the Customs Act. The redemption fine imposed in lieu of this confiscation Rs. 6.50 lakhs cannot be considered to be excessive, having regard to the value of the goods nearly Rs. 59.00 lakhs . 10. emsp Coming to the quanta of penalties, however, the appellant seems to have a good case inasmuch as the total of these penalties (Rs. 9.00 lakhs) is much higher than the composite penalty (Rs. 7.50 lakhs) imposed earlier. In the facts and circumstances of the case, we reduce the penalties under Section 112(b) and Section 112(a) to Rs. 6,50,000/- (Rupees six lakhs fifty thousands only) and Rs. 1,00,000/- (Rupees one lakh only) respectively. 11. emsp The impugned order is sustained with modification of the quanta of penalties as above and the appeal is dismissed on merits. (Pronounced in open court on 20-2-2007)
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2007 (2) TMI 554 - CESTAT, MUMBAI
Penalty - Imposition of ... ... ... ... ..... ision in Gaurav Mercantile Ltd. as well as it he decision of the Karnataka High Court in the case of Shree Krishna Pipe Industries, 2004 (165) E.L.T. 508 (Kar.) by stating that those Hon rsquo ble High Courts did not examine the scope of Section 11AC but only held that the case does not involve any substantial question of law for entertaining the appeal which was dismissed in limine. However, since the assessee is situated within the jurisdiction of the Bombay High Court, it is the decision of that High Court, which is required to be followed and further, the West Zonal Bench of the Tribunal is also under the jurisdiction of the Bombay High Court and for these reasons, I hold that the Bombay High Court rsquo s decision in Gaurav Mercantiles Ltd. is to be followed by this Tribunal, Following the ratio of the Bombay High Court rsquo s decision cited supra, I uphold the impugned order by which penalty on the respondents is set aside, and dismiss the appeal. (Pronounced in Court)
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2007 (2) TMI 553 - CESTAT, NEW DELHI
Appeal - Restoration of ... ... ... ... ..... as passed without notice to the applicant. The Tribunal in the case of Mideast Integrated Steels Ltd. v. CCE, Bhubaneswar - 2005 (190) E.L.T. 332 (Tri.-Del.) held that the Tribunal is competent to recall the order passed in a case where party had not been served notice. Further the Hon rsquo ble Allahabad High Court in the case of Jagdish Rolling Works v. CEGAT, New Delhi - 2004 (175) E.L.T. 21 (All.) held that notice was not being issued to appellants informing them about fixing date of hearing, dismissal of appeal by Tribunal for non-appearance by party not proper and the appeal was restored. After considering the facts and circumstances of the case, respectfully following the decisions of the Hon rsquo ble Allahabad High Court and the Tribunal order dated 14-6-2006 is recalled and the appeal is restored to its original number. The registry is directed to fix the appeal on 26-2-07. No notice of hearing will be served on the appellant. (Dictated and pronounced in open Court)
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2007 (2) TMI 552 - CESTAT, CHENNAI
Natural justice - Valuation ... ... ... ... ..... Accordingly, the orders of the lower authorities are set aside and the original authority is directed to pass a fresh order in accordance with law and the principles of natural justice, after supplying to the assessee all materials/information on the basis of which the transaction value is proposed to be rejected and correct assessable value is proposed to be determined. Since the lsquo relationship rsquo with the supplier is an admitted fact, it shall not be open to the original authority to examine this question any further. 5. emsp It goes without saying that another reasonable opportunity be afforded to the party, now that the appellants through their Counsel have undertaken to cooperate with the authority. The original authority is directed to pass final order as early as possible, at any rate within a period of 3 months from the date of receipt of a certified copy of this order. 6. emsp The appeal stands allowed by way of remand. (Dictated and pronounced in open court)
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2007 (2) TMI 551 - CESTAT, AHMEDABAD
Cenvat/Modvat - Compounded Levy Scheme - Deemed credit ... ... ... ... ..... y would have availed the deemed credit. The goods were originally cleared by them under Section 3A without payment of duty and on realizing that the said goods were required to pay duty on ad valorem basis, they paid the same. It is also stated in the present appeal of the Revenue that the duty was paid by the assessee voluntarily. In such a situation extension of the benefit of deemed credit to the appellants cannot be held to be not in accordance with law merely on the ground that the duty was not paid at the time of clearance but subsequently. The Tribunal in the case of M/s. Balakrishna Textile Mills Pvt. Ltd. v. CCE, Ahmedabad, 2005 (191) E.L.T. 309 (Tri.-Mumbai) held that there being no bar or prohibition for availing deemed credit at a time later then the clearance of the processed fabrics, the deemed credit cannot be denied subsequently. As such we find no merit in the appeal filed by the Revenue and the same is rejected. (Operative part pronounced in the open Court.)
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2007 (2) TMI 550 - CESTAT, BANGALORE
Demand - Cenvat/Modvat - Clandestine removal ... ... ... ... ..... mes to Rs. 12,85,507/-. The total Modvat credit available for the period in dispute is Rs. 15,76,336/-. In these circumstances, there will not be any net duty liability on the appellants. While calculating the duty, the lower authorities have not given cum-duty benefit in terms of the Apex Court judgment in the case of Maruti Udyog Ltd. (supra). The Commissioner (Appeals) in the impugned order has simply stated that the Modvat credit has already lapsed without quoting any authority. In these circumstances, the impugned order is bad in law. Since the Modvat credit available to the appellants is much more than the duty demanded, no further demand is sustainable. The said demand can be adjusted against the credit claimed by the appellants. Therefore the penalties on the appellants are not sustainable. Therefore, we set aside the impugned order and allow the appeals with consequential relief. (Operative portion of the order has been pronounced in the Court completion of hearing )
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2007 (2) TMI 549 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Clandestine removal - Evidence ... ... ... ... ..... our considered opinion, admitted fact need not be proved. Considering the facts and circumstances of the case, we direct the applicants to pay the entire amount of duty as pre-deposit demanded under the impugned order. As it has been brought to our notice that a sum of Rs. 54,45,800/- has since been paid by the applicant, we direct that the balance amount shall be paid within eight weeks from today. We further direct the applicant firm to deposit Rs. 10 lacs (ten lacs) within eight weeks from today towards penalty imposed on them. As regards the two partners, we do not require them to make any separate pre-deposit because being partners they will be jointly and severally liable under the law for the dues of the firm. On the said amounts being so deposited, there shall be waiver of the remaining amount of penalty levied on the applicants. All these applications are disposed of accordingly. Post the matter for compliance on 1-5-2007. (Dictated and pronounced in the open Court)
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2007 (2) TMI 548 - CESTAT, NEW DELHI
Appeal - Limitation - Delay of 190 days in filing appeal - Condonation of ... ... ... ... ..... find that the learned Advocate filed affidavit stating that he has advised the applicant to submit letter dated 5-4-2006 to the department. It is revealed from the record that the applicant received the impugned order on 2-3-2006 and approached the learned Advocate for necessary advise wherein the learned Advocate advised them to approach before the department by way of filing letter dated 5-4-2006 which is well within time limit of filing the appeal. Thus, it is apparent on the face of the record that delay was caused due to erroneous advice of the learned Advocate. In the case of Angadpat Industries (P) Ltd. (supra), the Tribunal condoned delay of 9 months and 21 days in filing of the appeal on the similar ground. In the facts and circumstances of the case, following the aforesaid decision of the Tribunal, I condone delay of filing appeal. The application is allowed. The registry is directed to list the stay application in due course. (Dictated and pronounced in open Court)
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2007 (2) TMI 547 - CESTAT, BANGALORE
Customs House Agents Licence - Suspension of ... ... ... ... ..... arge was grave they should have been put to ldquo immediate suspension rdquo as held by all the judgments noted supra. If there is a delay in issuing the suspension order, then it does not satisfy the term ldquo immediate action rdquo as stipulated in the regulations. Therefore, all the cited judgments have set aside the belated action on the part of the department in suspending the licence. They are bound by these judgments and we are not in a position to distinguish these judgments as pleaded by the learned Commissioner. The Commissioner is at liberty to proceed with the enquiry, however, the order of suspension has to be set aside as there is a delay in issuing the same and as the action was not taken immediately. The Commissioner is at liberty to proceed against the appellants in terms of the show cause notice but however, he shall permit the appellants to carry on the operation of CHA licence in terms of law. The appeal is allowed. (Pronounced in open Court on 26-2-2007)
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