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Showing 161 to 180 of 581 Records
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2005 (4) TMI 487 - CESTAT, KOLKATA
Manufacturer - Dummy unit ... ... ... ... ..... ication 305/77-CE., goods not being manufactured on behalf of customer - Section 2(f) of Central Excises and Salt Act, 1944. rdquo emsp 5.7For all the above discussions, we find that the finding of the Commissioner that M/s. GTC was the real manufacture, is erroneous. It may also be seen here that penalty on M/s. GTC has been imposed under Rule 209A which does not apply to the manufacturer. Further, in spite of holding M/s. NET as a dummy unit, penalty has been imposed on it, thus recognising its existence and separate entity. Therefore, the penalty imposed on M/s. NET is hereby sustained. emsp 5.8In view of the above, we hold that M/s. GTC were not a manufacturer of the cigarettes in question, and hence not liable to pay any duty and therefore, they cannot be fastened with any penalty liability. As such, penalty on M/s. GTC is held as unsustainable and no penalty can be upheld on any of its officers. We accordingly partly modify the impugned Order passed by the Commissioner.
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2005 (4) TMI 486 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... of the applicants is that the value did not exceed Rs. 25 per metre and what was added to hold that the value exceeded Rs. 25/- per metre is the notional profit which cannot be added to the assessable value. However, we find from the order of the Commissioner (Appeals) which was highlighted by the DR before us that higher amount has been charged by the applicants by way of processing charges than what has been declared in the price list. Therefore, no prima facie case for total waiver has been made out. Having regard to the totality of the facts and circumstances of the case, we direct the applicants to deposit a sum of Rs. 50,000/- (Fifty Thousand) within eight weeks from today and on such deposit, pre-deposit of balance duty 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. emsp 3.Compliance is to be reported on 4-7-2005. (Dictated in Court)
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2005 (4) TMI 485 - CESTAT, NEW DELHI
Cenvat/Modvat - Capital goods ... ... ... ... ..... in the manufacture of final product or processing of the final product. 3.I find that during the relevant period i.e. 1996 as per the definition of capital goods the plant, machinery and parts which are used in the manufacture of final product or processing of the goods are entitled for the benefit of credit as capital goods. In this case, this dust collector is attached to the double spindle buffing machine, which is used for the buffing/polishing of the dials and during the buffing/polishing lot of dust and dirt come into existence which is suck by dust collector. This factual position is not disputed by the Revenue and Revenue is also not disputing the credit in respect of double spindle buffing machine. In these circumstances, as dust collector is used as part of the double spindle buffing machine, the respondents are entitled in respect of this credit. I find no infirmity in the impugned order, the appeal is dismissed. (Dictated and pronounced in open Court on 27-4-2005)
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2005 (4) TMI 484 - CESTAT, MUMBAI
Appeal to Appellate Tribunal - Maintainability of ... ... ... ... ..... s at lsquo Nil rsquo rate of duty. In these circumstances Modvat credit taken on the inputs that have gone into the production of exempted goods is recoverable. The prayer in the Revenue rsquo s appeals is to restore the Orders-in-Original No. 47/AC/VII/97, dated 14-11-1997 passed by Assistant Commissioner of Central Excise Malad Division and 32/V/98/DC/AKS, dated 16-10-1998 passed by the Deputy Commissioner of Central Excise Mumbai-V. We have perused these orders. Both of them deal with the classification of goods, the disputed entries being 73.20 and 87.14 and not about admissibility or otherwise of Modvat credit. The Commissioner also dealt with the two orders on that basis only. That is the reason why, perhaps he does not give any finding on the Modvat issue. emsp 4.The Revenue rsquo s appeal does not spring from the order of the Commissioner nor does it spring from the orders in original mentioned above. emsp 5.The appeal is rejected. (Operative part pronounced in Court)
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2005 (4) TMI 483 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Modification of stay order ... ... ... ... ..... . It is pleaded that the Tribunal rsquo s order if implemented would cause unnecessary hardship to the applicant and therefore it requires modification. 2.After hearing both sides, we observe that the Tribunal rsquo s order cited Supra is passed under Section 35F of the Central Excise Act. The recovery procedure proposed in the Finance Bill has got nothing to do with the powers of the Tribunal under which it has directed the appellant to deposit a certain sum of money. It is not the Tribunal directed the appellant to deposit the entire duty involved. We see no reason to modify the order of the Tribunal at this stage simply because a new procedure for recovery of AED is being proposed in the Finance Bill. We reject the modification application but extend the time to deposit the amount directed by another four weeks. The applicant is directed to report compliance on 18-5-2005. The modification application is disposed off in the above manner. (Operative part pronounced in Court)
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2005 (4) TMI 482 - CESTAT, MUMBAI
Valuation - Penalty ... ... ... ... ..... al assessment. Similarly, the Supreme Court in the case of Commissioner of Customs, Mumbai v. Shibani Engg. Systems 1996 (86) E.L.T. 453 (S.C.) has held that when the manufacturers invoice is not produced, price of similar goods can be taken for assessment purposes. Finally the Hon rsquo ble Supreme Court 1995 (78) E.L.T. A221 (S.C.) in the case of Shyam Antenna Electronics Ltd. 2003 (162) E.L.T. 898 (T) 1994 (55) ECR 497 upheld the Tribunal rsquo s order wherein it was decided that for price of contemporary imports of identical goods from same manufacturer being higher, declared prices to be disregarded. The judgment of the Hon rsquo ble Supreme Court in the case of M/s. Eicher Tractors Ltd. 2000 (122) E.L.T. 321 (S.C.) is not applicable to the facts of the present case since this is not a case of discount. emsp 6.Accordingly, we uphold the valuation but set aside the penalties since this is a case of finalisation of provisional assessment. (Pronounced in Court on 26-4-2005)
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2005 (4) TMI 481 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... ell as M/s. Ajay Gems (dealers in precious/semi precious stones etc.) were of the same opinion. Further M/s. Ajay Gems certified that the goods are ldquo Glass Crystal Beads rdquo . From all these facts, it is clear that the goods were not ordinary glass beads but are within the category of precious/semi-precious/synthetic stones. The declaration in generic term was found to be not correct or proper. In view of the higher value certified by all concerned, the declaration has to be held to have been made to deceive and to evade duty. There are other factors also discussed elaborately in the findings which support the charge of misdeclaration/under-valuation. 3.In the facts and circumstances, full waiver is not justified. Accordingly, the importer is directed to deposit an amount of Rs. 18 lakhs towards duty and Rs. 9 lakhs towards penalty within a period of 8 weeks from today. Matter to come up for reporting compliance on 4-7-2005. (Order dictated and pronounced in open Court)
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2005 (4) TMI 480 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... nt. emsp 4.After hearing both sides, we find force in the submissions of the ld. DR. The duty amount stands confirmed against the appellants only as a result of quantification of the duty in terms of the ACP fixed by the Commissioner. Ld. Consultant has fairly conceded that the earlier ACP fixation order is followed, then the appellants are liable to pay the entire amount of duty. Having already observed that prima facie the appellants are required to follow the order of the Commissioner fixing the ACP in their own case, we hold that the appellants does not have any prima facie case in their favour. Accordingly, we direct them to deposit the entire amount of duty within a period of eight weeks from today and report compliance on 21-6-2005. 5.Inasmuch as a very short point is involved, we are of the view that the appeal itself can be disposed of on the said date. We also make it clear that during the pendency of the appeal the recovery of penalty is stayed. (Dictated in Court)
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2005 (4) TMI 479 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Demand - Limitation ... ... ... ... ..... ling price lists in Proforma III as required under Rule 173C read with Central Excise (Valuation) Rules, 1975 and such price lists has been regularly approved and, prima facie, the Supreme Court judgment in Easland Combines 2003 (152) E.L.T. 39 (S.C.) relied upon by the lower Appellate Authority to hold that the demand could be raised within the extended period of limitation has not been applied in proper perspective since in that case, it was clearly held that ldquo when any duty of excise has been short-levied or short-paid, whether or not such short-levy or short-payment was on the basis of any approval .........a Central Excise Officer can within one year from the relevant date, serve notice on the person chargeable with the duty which has been short-levied or short-paid rdquo , and in the present case, show cause notice was not issued within one year from the relevant date. We, therefore, waive pre-deposit and stay recovery thereof pending the appeal. (Dictated in Court)
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2005 (4) TMI 478 - CESTAT, MUMBAI
Appeal to Commissioner (Appeals) - Limitation - Delay in filing ... ... ... ... ..... order was supplied for the first time to the appellants on 1-10-2001. The appellant rsquo s stand that the same was not signed and as such, proper cannot be accepted as the appellants could have filed their appeal thereagainst within time and in case of objection by the office of the Commissioner (Appeals) could have subsequently obtained the proper copy. Instead, they waited and persuade the matter with the office of the original adjudicating authority and filed the appeal after a period of more than 1 frac12 years from the date of receipt of the order. It is now well settled that the Commissioner (Appeals) does not have any powers to condone the delay beyond the period of sixty days from the expiry of the limitation period. As such, the Commissioner (Appeals) could not have condoned the delay in filing the appeal. The same has been rightly rejected by him as time-barred. In view of the foregoing, I do not find any merit in the appeal and reject the same. (Dictated in Court)
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2005 (4) TMI 477 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... the impugned order, the Commissioner holds that duty was paid by the original manufacturer on parts of furniture and not on furniture itself and therefore, duty is payable when such duty paid parts are converted into work stations/furniture systems rsquo etc. E5.We are prima facie of the opinion that the appellants rsquo contention that duty was already discharged on the goods that were being installed by the appellant is correct. The appellants rsquo contention that duty cannot be charged on the same goods twice appears to be prima facie right. We have perused the order of the Assistant Commissioner referred to above. We hold that the appellants have made out a strong prima facie case in their favour for waiver of pre-deposit of duty and penalty. We accordingly, waive pre-deposit of both duty and penalty and post the case for regular hearing along with other similar appeals already listed on the said date. Registry to act accordingly. (Operative part pronounced in the Court)
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2005 (4) TMI 476 - CESTAT, NEW DELHI
Stay/Pre-deposit of duty and penalty ... ... ... ... ..... uty liability. emsp 4.We have considered the submissions made by both the sides. We find that the applicants are manufacturing the disputed BOPP film on job work basis under Notification No. 214/86 and these are being returned by them under job work challans to the principal manufacturer. The principal manufacturer is further using these in the manufacture of pouches which are cleared on payment of duty. Therefore the metalized film cleared in terms of Notification No. 214/86 to the principal manufacturer for the manufacture of dutiable pouches, prima facie does not amount to clearance of goods on sale under Rule 6(3)(b) ibid. In these circumstances, prima facie we find that there is sufficient ground for staying recovery of duty and penalty. We, therefore, waive the condition of pre-deposit of duty and penalty for hearing of the appeal. The appeal will be listed on Board in due course. 5.Thisapplication stands disposed of accordingly. (Pronounced and dictated in open court).
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2005 (4) TMI 475 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... collected from buyers on account of transportation although not used by them amounts to additional consideration for sale of goods and thus includible in assessable value. The Tribunal has distinguished the Apex Court decision in the case of Baroda Electric Meters Limited v. CCE - 1997 (94) E.L.T. 13 (S.C.), which has been relied upon by the applicants before us. The Adjudicating Authority has also distinguished the above judgment and relied upon Tripty Drinks (P) Ltd. cited supra. In these circumstances, no strong prima facie case for total waiver has been made out. We, therefore, direct pre-deposit of Rs. 4 lakhs towards duty within eight weeks from today and on such pre-deposit, the 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. 3.The compliance is to be reported on 27-6-2005. (Operative part pronounced in Court)
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2005 (4) TMI 474 - CESTAT, NEW DELHI
Cenvat/Modvat ... ... ... ... ..... the respondents for denying the Modvat credit on the ground that goods are not capital goods as per Explanation to Rule 57Q. In the present matter, the respondents had after reversing the credit, filed the letter of protest which has been duly acknowledged by the Department. Even then the Department has not taken any action to regularize the reversal of Modvat credit as apparently no show cause notice or any Adjudication order disallowing the Modvat credit has been issued by the Department. It is also not disputed by the Revenue that the respondents had again written a letter in February, 1998 requesting the Department to allow the Modvat credit of which no notice seems to have been taken by the Department. In such a circumstances, there is no reason to interfere with the impugned order passed by the Commissioner (Appeals), relying upon the decision of the Tribunal in the case of Indo American Electricals Ltd. The Appeal filed by Revenue is rejected. (Pronounced in the Court)
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2005 (4) TMI 473 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... olding that they are not permissible deductions from the assessable value of goods manufactured and cleared by the applicants herein on the ground that the applicants failed to produce proof that the benefit of discounts was actually passed on to their customers. 3.We have heard both sides and find that a strong prima facie case for waiver has been made out on the basis of the Hon rsquo ble Bombay High Court rsquo s judgment in Goodlass Nerolac Paints Ltd. v. UOI reported in 1993 (65) E.L.T. 186 which has been followed by the Tribunal in 1996 (85) E.L.T. 139 in the case of CCE, Meerut v. Stallion Shox Ltd. The Tribunal rsquo s decision in Punjab Worsted Spg. Mills v. CCE, Chandigarh - 2001 (136) E.L.T. 1016 is prima facie distinguishable for the reason that it has not noted the judgment of the Hon rsquo ble Bombay High Court in Goodlass Nerolac Paints Ltd. We, therefore, waive pre-deposit of duty and penalty and stay recovery thereof pending these appeals. (Dictated in Court)
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2005 (4) TMI 472 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Demand - Duty liability ... ... ... ... ..... f Board Circular No. 673/64/02-CX, dated 28-10-02. Prima facie, I do not find any illegality in the impugned order. The plea of the appellants that they had not charged any price from buyers and as such are not liable to pay duty, has been rightly not accepted by the authorities below, as non-charging price by them, did not absorb them from the liability to pay duty on the excisable goods, at the time of clearance from their premises. If they have not charged the price, it is their fault and they cannot claim any capital out of that. Therefore, appellants have no strong case on merits. They are directed to pre-deposit of the entire amount, detailed above within eight weeks from today. On making the deposit, the deposit of penalty amount of Rs. 40,000/- shall stand waived till the disposal of the appeal. But in the event of their failure to do so, their appeal will be dismissed under Section 35F of the Act. Compliance be reported on 28-6-05. (Order dictated in the open Court.)
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2005 (4) TMI 471 - CESTAT, NEW DELHI
Cenvat/Modvat - Duty paying documents - Endorsed bill of entry ... ... ... ... ..... rd Circular. 5.The contention of the Revenue is that the credit was taken on the strength of endorsed Bill of Entry, which was a not duty paying document. 6.We find that the Board rsquo s Circular dated 29-2-96 provides that where imported goods were transferred before the Customs clearance then there should be a declaration in the Bill of Entry endorsed by the proper officer of the Customs for enabling the manufacturing Unit to avail the credit. In this case M/s. Xerox Modicorp Limited imported the goods in question and the goods were transferred to the appellants before the clearance from the Customs. We find that on the Bill of Entry the necessary declaration was made and was duly endorsed by the Customs authority. In view of this factual position and in view of the Board s Circular dated 29-2-96 credit cannot be denied to the appellants on the ground that credit was taken on the strength of endorsed Bill of Entry. The impugned order is set aside and the appeal is allowed.
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2005 (4) TMI 470 - CESTAT, NEW DELHI
SSI Exemption - Brand name ... ... ... ... ..... e Revenue that it indicates a connection in the course of trade between the specified goods and some person user of such name. In absence of any material to indicate the identity of the owner of the brand name said to have been used by the appellants, the benefit of Notification is not deniable. Accordingly, the goods bearing the brand name other than Casio and Citizen, are not liable for confiscation. Accordingly, I uphold the confiscation of impugned goods bearing the brand names Citizen and Casio and set aside the confiscation of goods bearing the brand name other than Citizen and Casio. Consequently, the redemption fine is reduced to Rs. 30,000/- and penalty on appellants-company is reduced to Rs. 10,000/-. This is not a fit case for imposing a penalty separately on the Director of the Company. Accordingly, I set aside the penalty imposed on Shri Anup Kumar Mittal. The appeals are disposed of in above terms. (Operative part of Order pronounced in open Court on 21-4-2005).
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2005 (4) TMI 469 - CESTAT, KOLKATA
Cenvat/Modvat - Delay in filing declaration ... ... ... ... ..... he submits that the credit should not be denied on the technical grounds. In present case there is no dispute that the appellant had received goods under cover of proper duty paying documents in their factory on 2-2-1996 and had been properly accounted for in their Books of Account. The said goods had been used in the factory in manufacture of dutiable goods. By virtue of Rule 57T the Assistant Commissioner has discreation to condone the delay up to 2 months for late filing of the declaration. In present case the declaration has been filed within 2 months from the date of receipt of the goods. From perusal of the aforesaid decision of this Tribunal, it is clear that the substantial benefit of Modvat should not be denied on the technical grounds. In view of above, appeal deserves to be allowed. 4.Therefore, I condone the delay in filing the declaration and I set aside the impugned order and allow the appeal with consequential benefit to appellant. Pronounced in the open court.
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2005 (4) TMI 468 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Classification ... ... ... ... ..... As regards, the previous period he upheld the view of the original adjudicating authority. 2.The appellants grievance is that the Commissioner (Appeals) having accepted the appellants stand of correct classification under Chapter 4, was not justified in restricting the same from 1-2-2001 onwards. The appellant having claimed the correct classification even before the Assistant Commissioner and the duty of the authorities being to arrive at the correct classification in spite of the wrong claim of the appellant, the classification should have been accepted under Chapter 4 for all times. We agree with the above contention of the ld. Advocate. The appellate authority having held correct classification under Chapter 4 should have been adopted the same for the entire period instead of dividing the period into two parts. Accordingly, we are of the view that the appellant have a strong prima facie case in their favour and allow the stay petitions unconditionally. (Dictated in Court)
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