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Showing 161 to 180 of 552 Records
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2004 (6) TMI 482 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Re-classification ... ... ... ... ..... ioner (Appeals), the Central Excise Range Superintendent has re-quantified the differential duty at Rs. 1,39,656/- and communicated the same to the party by letter dated 13-1-2004. A copy of the Superintendent rsquo s letter has been brought on record and we have perused the same. Apparently, the final demand of duty as re-quantified in terms of the impugned order is to the tune of Rs. 1,39,656/- only. At this stage, again, the counsel points out that they have already paid Rs. 1.46 lakhs towards duty on HDPE Tapes for the period of dispute. However, he has not been able to prove this submission. Had he produced any confirmation from the Central Excise Range Superintendent, we would have considered the same. In the absence of evidence, this last submission of the Counsel cannot be entertained. We direct M/s. SRI to pre-deposit the amount of Rs. 1,39,656/- (Rupees One Lakh Thirty nine thousand Six hundred and fifty six only) within six weeks and report compliance on 13-7-2004.
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2004 (6) TMI 481 - CESTAT, CHENNAI
Appeal - Limitation - Condonation of delay ... ... ... ... ..... l immediately before us is the one challenging the Commissioner rsquo s order dated 1-2-2000, whereby the ACP was determined by him in view of change of parameters effected by the party on 15-10-1998 without taking into account the earlier (16-8-1997) change of parameters though the latter was also made under intimation to the Commissioner. The essential facts stated above are not in dispute. Prima facie, the above order of the Commissioner is not sustainable. If, in these circumstances, we do not entertain the present application, we will be rendering gross injustice to the assessee. It has been held by the Hon rsquo ble Supreme Court that, in matters like condonation of delay of appeals, the question whether the party is likely to be put to gross injustice and irreparable legal injury in the event of the delay not being condoned is a relevant consideration. Following this ruling of the Apex Court, we must condone the aforesaid delay of the appeal. It is ordered accordingly.
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2004 (6) TMI 480 - CESTAT, NEW DELHI
Cenvat/Modvat - Reversal of - Demand - Clandestine removal ... ... ... ... ..... sed in the manufacture of exempted goods, it is not a case of the Revenue that respondents were not reversing the credit. The only contention is that the respondents were reversing the less credit and the dispute is in respect of only 31 MT of inputs. In these circumstances, in view of the decision of the Hon rsquo ble Supreme Court relied upon by the respondents, we find no merit in the contention of the Revenue. 8. emsp In respect of remaining demand in respect of the inputs found short, respondents produced evidence showing that 4.6 MT is waste arising out of the manufacture of final goods which is duly reflected in the statutory record. The factory was working on the day of visit and this fact was not disputed by the Revenue. Therefore, there is no infirmity in the impugned order where the Commissioner (Appeals) accepted the contention of the respondents that the inputs were contained in the material under processing. In view the above discussion, the appeal is dismissed.
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2004 (6) TMI 479 - CESTAT, CHENNAI
Appeal - Limitation - Condonation of delay in filing appeal ... ... ... ... ..... elayed by eight months. The explanation of the party for this delay is that their factory had been closed long ago and the premises were occupied by their lessee and that an employee of the lessee received the impugned order but, due to his negligence, failed to hand it over to them (appellants). The COD application is accompanied by an affidavit of the said employee of the lessee, whose name is Shri P.S. Sethumadhavan. Shri Sethumadhavan, in his affidavit, says that the envelope received by him from the Commissioner of Central Excise (Appeals), Chennai was not collected by the appellants till the last week of February, 2004. This affidavit is clearly indicative of the negligence of the appellants, whereas the COD application puts the blame on Shri Sethumadhavan. Therefore, the explanation offered in the COD application cannot be accepted. The COD application is virtually self-defeating and the same is rejected. Consequently, the appeal and the stay application get dismissed.
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2004 (6) TMI 478 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... o s society closed down their job work activity long ago and the society itself is presently non-existent. We have heard Ld. DR also, who has reiterated the findings of the Commissioner (Appeals). 2. emsp We have examined the matter. The dispute relates to classification of the herbal powder. Such a dispute by its nature is arguable. Moreover, the appellant-society, which apparently was engaged in the production and sale of the herbal powder on job work basis during the material period, had to close down their activity under financial constraints. The society itself is non-existent now. Having regard to these circumstances as also to the fact that the much-needed empowerment of women must receive compassionate attention, we are inclined to grant waiver of pre-deposit and stay of recovery in respect of the duty demanded by the lower authorities. It is ordered accordingly. There will be waiver of pre-deposit and stay of recovery in respect of the duty amount pending the appeal.
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2004 (6) TMI 477 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... cating authority). When the notice of hearing before the Commissioner was issued, the importers brought to the notice of the Commissioner the fact that an ROM application had been filed before the Tribunal and was pending. By letter dated 20-2-2004, the Commissioner declined to adjourn the hearing and fixed the hearing on 3-3-2004. The adjudicating authority, after hearing the appellants, passed the order of duty confirmation and imposition of penalty. We note that out of the total duty demand, Rs. 20 lakhs stands paid. Keeping in view the above fact together with the fact that the application for rectification of mistake against the Tribunal rsquo s final order reported in 2003 (159) E.L.T. 755 is pending and that the Commissioner was informed of the pendency of the ROM application, we are of the view that no further pre-deposit of duty or penalties is called for at this stage and hence we waive pre-deposit of duty and penalties and stay recovery thereof pending the appeals.
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2004 (6) TMI 476 - CESTAT, MUMBAI
Cenvat/Modvat - Input - Scrap ... ... ... ... ..... nsure that the material received initially in the Ghatkopar factory went out for sorting and is received back after sorting from Bhiwandi godown. In that situation, no objection could have been raised to the claim of modvat. In other words, the failure in essence was localised only to the extent of failure to generate a few internal challans. But we note that proper accountal of the entire input material which is the basic purpose for generation of challans is being overlooked in the entire review proceedings initiated by the Board. In the absence of any documentary evidence to dispute the utilisation of the entire material, barring the waste, in the manufacture of final goods, the claim for modvat cannot be denied. So for as waste is concerned as already observed by us, the findings arrived by the Commissioner are legal and proper. 6. emsp We, therefore, see no reason to interfere with the order passed by the Commissioner and accordingly we reject the revenue rsquo s appeal.
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2004 (6) TMI 475 - CESTAT, NEW DELHI
SSI exemption - Value of clearances - Clubbing of clearances for Central Excise duty - Clandestine removal - Use of brand name and clandestine clearance - Whether the clearances of different units should be clubbed for the purpose of levying Central Excise duty - HELD THAT:- In the present matters, the main submissions of Revenue about the common funding and financial flow back is that funds in all units were provided by family members and friends and the unsecured loans were arranged by D.R. Goel. From the Summary of Financial arrangement given by the learned SDR, we observe that there is no mention of arranging unsecured loans for M/s. Summerking Electrical (P) Ltd. nor is there any material to show that there was financial flow-back from other units to M/s. Summerking Electrical (P) Ltd. The main contention of Revenue is that unsecured loans were arranged by D.R. Goel. Arranging of loans from family members and friends cannot lead to a conclusion that all the units do not exist. It is a common practice to arrange loans/finances for near and close relatives venturing into business.
As regards use of brand name and clandestine clearance, we are of the view that matter should go back to the jurisdictional Adjudicating Authority for re-adjudication in view of our holding that all units are having separate and independent existence. The Adjudicating Authority has to decide as to whether there was any clandestine clearance of the goods and if so which unit or units indulged in clandestine manufacture and clearance, and if yes, whether they exceeded the exemption limit provided in SSI exemption notification. Similarly the question of use of Brand Name has to be decided by the Adjudicating Authority in accordance with law. We, however, make it clear that the Adjudicating Authority will be at liberty to impose any penalty on both these counts, if necessary. We now come to the appeals filed by Revenue.
The prayer regarding imposition of penalty on 7 other persons and demand of interest u/s 11AB of the Central Excise Act do not survive in view of our Order holding the manufacturing units as independent of each other. The issue regarding clandestine clearance of goods has been remanded and the Revenue is at liberty to plead before the Adjudicating Authority regarding non-accountal of goods reflected in the testing records in RG-1 and their removal without payment of duty. Similarly the Adjudicating Authority will decide afresh about the demand of duty on cooler pump and its motor.
All the appeals are disposed of in the above terms.
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2004 (6) TMI 474 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit of penalty ... ... ... ... ..... cants had made payment of duty through cheque submitted to the Superintendent and Chief Accounts Officer instead of giving in the Bank. As the Revenue Officers accepted the cheque, prima facie, therefore, we find a strong case in favour of the Applicants. Therefore, the pre-deposit of penalty is waived for hearing of the Appeal. Adjourned to 10-8-2004 for arguments.
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2004 (6) TMI 473 - CESTAT, BANGALORE
Stay of order - Appeal by Department - Authorisation to file appeal ... ... ... ... ..... Ltd. v. CCE, Meerut - 1999 (108) E.L.T. 498 (Tribunal). 2. emsp Heard both sides in the matter. 3. emsp On a careful consideration, prima facie, we are satisfied that in terms of the provision of Section 129D(2), the authority who passed the order should be directed to file the appeal before the Commissioner (Appeals). While in the present case, the Commissioner of Customs has authorised the Assistant Commissioner to file the appeal who was not the authority who passed the Order-in-Original. Prima facie this plea, raised before the Commissioner (Appeals), ought to have been considered in appellant rsquo s favour. However, the Commissioner (Appeals) has distinguished the judgments. Prima facie, the order is not legal and proper and hence the stay application is allowed. As the issue is settled the matter can be listed for final hearing. Appeal to come up for final hearing on 20th September, 2004. SDR may file para-wise comments if the department wishes to do so in this matter.
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2004 (6) TMI 472 - CESTAT, NEW DELHI
... ... ... ... ..... this the appeals were dismissed. The appellant relied upon the decision of the Tribunal in the case of Sharda Anand v. CC reported in 1992 (62) E.L.T. 738 and Bajaj Hindustan Ltd. v. CCE, Allahabad reported in 2002 (149) E.L.T. 529 to submit that such defects are curable in nature and an opportunity to rectify the defects shall be allowed to the assessee. 5. emsp In this case the appeals filed by the appellants were dismissed on the ground that the appeals were filed without the signatures of the appellant. The appellant submitted additional signed copies of the appeals to the Commissioner (Appeals). In these circumstances, the dismissal of the appeals on this ground is not sustainable and set aside. The matter is remanded to the Commissioner (Appeals) for deciding the appeals on merit with the direction that if the appellant had not already filed the signed copies of appeal, after getting the defect removed from the appellants. The appeals are disposed of by way of remand.
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2004 (6) TMI 471 - CESTAT, CHENNAI
Appeal - Limitation - Condonation of delay of 27 days ... ... ... ... ..... d misplaced the impugned order of the Commissioner (Appeals) and consequently the Managing Director of the Company received the order belatedly. We have heard the applicants rsquo counsel, who has reiterated the above ground. We have also heard the DR. 2. emsp Having been satisfied with the genuineness of the above ground, we condone the delay of the appeal.
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2004 (6) TMI 470 - CESTAT, BANGALORE
... ... ... ... ..... e matter to be decided on merits and seek for upholding the favourable findings given by the authorities. 3. emsp On a careful consideration of the submissions we notice from the case law relied by both the sides that the value of the bought out item is required to be added only when they are essential parts of the goods and when they enrich its value. Both the authorities have examined the question of fact and have found that the bought out items are not essential parts and they were supplied in terms of the request made by the Customer to fulfil the contractual obligation. This question of fact having been examined by both the authorities and found that the bought out items are not essential parts of the goods hence then we are not in a position to come to a different conclusion to hold that they are essential parts. The citation relied by learned DR is distinguishable. We do not find any infirmity in the impugned order and hence the appeal filed by the Revenue is rejected.
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2004 (6) TMI 469 - CESTAT, NEW DELHI
Cenvat/Modvat - Duty paying documents - ... ... ... ... ..... f the Rules. Therefore, no credit on such a copy could be claimed by the appellants. The contention of the learned Counsel regarding loss of duplicate copy and lodging of report with the police by the appellants cannot be accepted for want of any concrete evidence on record to substantiate the same. No copy of FIR has been brought on record. The copy of the letter placed on file by the appellants only shows that on 19-8-2000, their authorised signatory informed the police regarding loss of duplicate copy of bill of entry but what happened after that letter, remains unexplained by the appellants. 4. emsp For having failed to prove positively the loss of duplicate copy of bill of entry, the appellants have been rightly denied the Modvat credit. The ratio of law laid down in the above referred cases is not attracted to the case of the appellants in the light of facts detailed above. 5. emsp Consequently, the impugned order is upheld and the appeal of the appellants is dismissed.
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2004 (6) TMI 468 - CESTAT, NEW DELHI
... ... ... ... ..... the respondents in the present matter has been fixed are Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997 which was issued vide Notification No. 32/97-C.E. (N.T.), dated 1-8-1997. The mere fact that the Hon rsquo ble High Court has held that the Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules is ultra vires of Section 3A(2) of the Central Excise Act does not mean that all the Rules issued under Section 3A(2) became automatically ultra vires. There is no pronouncement by any High Court or Supreme Court that Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997 are ultra vires. In view of this, decision in the case of Beauty Dyers will not be applicable to the facts of the present matter. We, therefore, set aside the impugned order and remand the matter to the Commissioner (Appeals) for deciding the same on merits after following the principles of natural justice. The appeal is thus allowed by way of remand.
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2004 (6) TMI 467 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Demand ... ... ... ... ..... . ndash Since the appellant rsquo s society is under liquidation, there is no need for making any pre-deposit. There will be a stay of recovery of the demand. Post the case on 27-9-2004.
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2004 (6) TMI 466 - CESTAT, KOLKATA
Appellate Tribunal’s order ... ... ... ... ..... ion of its Order, by the Tribunal. He only gives a reference to Section 35C(4). 2. emsp I find that this sub-section deals with the following proviso - ldquo Save as provided in Section 35G or Section 35L, Orders passed by the appellate tribunal on appeal shall be final. rdquo This sub-section does not give any power to stay operation of the Order passed by the Tribunal. The Miscellaneous Application filed by the Revenue is thus rejected.
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2004 (6) TMI 465 - CESTAT, CHENNAI
Appeal to Appellate Tribunal - Limitation ... ... ... ... ..... Ltd. It is submitted by ld. Counsel that the order of amalgamation was received from the Hon rsquo ble High Court only in the first week of July, 2003 and further that, consequent to the amalgamation, there were administrative changes which incidentally resulted in delayed filing of the appeals. We appreciate the facts pleaded by the appellants. We have also heard the DR. 2. emsp The explanation for the delay is convincing and accordingly, the delay is condoned.
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2004 (6) TMI 464 - CESTAT, MUMBAI
Cenvat/Modvat - Refund of unutilised credit ... ... ... ... ..... ed nor there is material in the grounds to conclude that condition of proviso is not met. The ground of violation of Condition No. 2 and 5 is therefore not upheld. (b) The CCE (A) has brought out the fact of AR 4 being submitted to same authority to meet the export obligation proof cannot be found fault. This to be a failure, to cause rejection of the refund under 57F(13) by the same authority cannot be upheld. The original authority could have verified the documents in the other file. (c) There is commercial sense and force in the finding of CCE (A), that no manufacturer will discharge current liability of duty in cash, from his PLA, thereafter only to seek refunds of the Credit amounts. No precedent man of Commerce would block his cash/money. When he could as well discharge the current duty liabilities from the Modvat credits available and not disputed. (d) There are no valid grounds found to upheld the finding of CCE (Appeal). 4. emsp Consequently this appeal is dismissed.
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2004 (6) TMI 463 - CESTAT, NEW DELHI
... ... ... ... ..... rt in the case of Flock India Pvt. Ltd. (supra). It is not open to the appellants to challenge the assessment of the goods which have not been manufactured by them nor cleared by them. As a customer, they have the right to claim the refund of Central Excise duty if any refund is first admissible. In the present matter, the refund has not arisen as the assessment of the goods, in question, has not been challenged. In absence of any excess payment of duty, the question of the appellants filing a refund claim does not arise. In the case of Allied Photographics India Ltd., relied upon by the learned Advocate, the Supreme Court has held that ldquo Section 11B deals with the claim for refund of duty. It did not deal with the making of refund rdquo . In the present matter, what the appellants are doing is ldquo making of refund rdquo by challenging assessment of goods manufactured and cleared by a third party. We, therefore, find no merit in the present matter and reject the appeal.
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