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Case Laws
Showing 161 to 180 of 497 Records
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2005 (6) TMI 414 - CESTAT, CHENNAI
Import - DEEC scheme - Amnesty ... ... ... ... ..... the Commissioner. They say that they had actually used indigenous inputs also in the manufacture of export goods and, in respect of such inputs, they were not liable to reverse the credit. It is pointed out that, by mistake, that they had reversed the credit in respect of such inputs. In this appeal, they want to get back this credit. emsp 3.After hearing both sides, we are unable to accede to this prayer. The party submitted themselves to amnesty provided by the Central Government. In terms of the amnesty scheme, the adjudicating authority dropped the proceedings against them after noting the facts pleaded by them. Now the assessee cannot turn round and say that the facts presented before the Commissioner in the context of adjudication of the case were not correct. What stands settled under an amnesty scheme is to be treated as settled for ever. One cannot have one rsquo s cake and eat it. emsp 4.In the result, the appeal is dismissed. (Dictated and pronounced in open Court)
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2005 (6) TMI 413 - CESTAT, CHENNAI
... ... ... ... ..... arefully considered the submissions of the appellants as well as during the impugned order. I entirely agree with the appellants plea that the Assistant Commissioner cannot reassess the goods once it is cleared under Yellow bills of entry, through the Custom House, Madras ex-bond. The established practice is the duty is paid on the usable portion of the films. Moreover, the scrap arising put of cutting of the jumbo rolls is cleared as scrap by paying Excise duty. Therefore, there is no question of non-payment of any duty. rdquo 3.Ld. Commissioner (Appeals) noted that the established practice of demand of Customs duty was only on the usable portion of imported films. He also found that the scrap arising out of cutting-to-size of the jumbo rolls was cleared only on payment of duty. These two findings are not under challenge in the present appeal. Therefore, the appeal is bereft of merit and the same is dismissed. (Operative part of the order was pronounced in Court on 8-6-2005)
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2005 (6) TMI 412 - CESTAT, NEW DELHI
... ... ... ... ..... re make that deposit, the appeal of the appellants could be dismissed under the said Section. Therefore, for non-deposit of the interest, the ld. Commissioner (Appeals) could not dismiss the appeal of the appellants under Section 35F of the Act. Consequently, the impugned order passed by the Commissioner (Appeals) is set aside and matter is sent back to the Commissioner (Appeals) for deciding the same on merits after hearing the appellants. Appeal of the appellants accordingly stands disposed of. (Order dictated in the open Court)
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2005 (6) TMI 411 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Stay of coercive action ... ... ... ... ..... Act, 1944, coercive action should not be taken for recovery of arrears/duties. Since the applicant is protected by the said Circular of the Board, there is no need to issue any orders on the stay application. Since coercive action is stayed as per the Board rsquo s said Circular, the pre-deposit is waived with liberty to the respondent to move if information regarding floating of survey is incorrect. This application stands disposed of accordingly. (Dictated in open Court on 6-6-2005)
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2005 (6) TMI 410 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... h removal is to be considered as lsquo separate transaction rsquo and there can be as many transaction values as the removal of goods and each has to be determined individually. Clearance for captive consumption of the goods is a separate transaction where the goods are not sold. Therefore, recourse will have to be taken to the provisions of Section 4(1)(b) of the Central Excise Act, 1944, read with Valuation Rules, 2000 and accordingly, the value of the goods captively consumed would be 115 of the lsquo cost of production rsquo as per provisions of Rule 8 of the Valuation Rules ibid, as observed in the impugned order. emsp 5.After hearing both sides and having regard to the aforesaid observations made by the Commissioner (Appeals), we find there exists prima facie case in favour of the appellants. Accordingly, we grant full waiver of pre-deposit amount and stay its recovery, pending disposal of the appeals. The applications are disposed off accordingly. (Pronounced in Court)
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2005 (6) TMI 409 - CESTAT, CHENNAI
Cenvat/Modvat - Capital goods - Tool bits and screeners ... ... ... ... ..... r these two headings were not specified under the Explanation to Rule 57Q(1). In the present appeal, it is the contention of the assessee that both the items were squarely covered by the general provisions of Rule 57Q(1). Ld. Counsel has reiterated this contention. Ld. DR has endeavoured to support the findings of the lower authorities. 2.After a perusal of Rule 57Q(1), as this provision stood prior to 1-7-96, I find that parts/components/accessories of plant, machine, machinery, equipment, appliances, etc. used in the factory for producing or processing of goods or for bringing about any change in any substance for the manufacture of final product were eligible capital goods for Modvat credit. The ldquo Explanation rdquo referred to by lower authorities did not affect this legal position. Hence it is held that the appellants are entitled to the capital goods credit in question. The impugned order is set aside and the appeal is allowed. (Dictated and pronounced in open Court)
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2005 (6) TMI 408 - CESTAT, CHENNAI
EXIM - Duty payment by debit in DEPB - Penalty - Imposition of ... ... ... ... ..... examined Para 7.41 of the relevant EXIM Policy as well the provisions of Notification No. 34/97-Cus. and held beyond any shadow of doubt that when an importer paid duty of Customs in part by way of debit in DEPB, he was availing the benefit of the above Notification to such extent. Simultaneous availment of Modvat credit and the benefit of exemption Notification was ruled out by the Larger Bench. The present case is squarely covered by the Larger Bench decision, which is in favour of the Revenue. However, as regards the penalty of Rs. 1000/- imposed on the assessee by the original authority, I am of the view that such a penalty is not warranted in a case of this nature involving interpretation of an Exemption Notification and EXIM Policy provisions. 4.In the result, the impugned order is set aside and the order of the original authority is restored except in relation to the penalty. The Revenue rsquo s appeal is allowed to this extent. (Dictated and pronounced in open Court)
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2005 (6) TMI 407 - CESTAT, BANGALORE
Cenvat/Modvat ... ... ... ... ..... larly as the said goods had been exempted from additional duty under Section 3 of Customs Tariff Act which is equivalent to the duty of Excise specified under (i) to (iii) of CTA, 1975 by virtue of Notification No. 36/94. 2.The learned Counsel produced the invoices to demonstrate the fact of payment of Customs Duty. However, the learned JDR submitted that they are not eligible for availing Modvat credit as no additional duty equivalent to Excise Duty had been collected as the same was exempted in the said Notification. emsp 3.On a careful consideration and on examining the provisions of law, we notice that the imported item was exempted from additional duty in terms of the noted section. They are not eligible to take Modvat credit on Customs duty, as additional duty had not been paid. Therefore, there is no infirmity in the impugned order and the same is upheld by dismissing these appeals. (Operative portion of this Order was pronounced in open Court on conclusion of hearing)
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2005 (6) TMI 406 - CESTAT, BANGALORE
Demand and penalty - Clandestine manufacture and removal ... ... ... ... ..... s Ltd. v. CCE, Hyderabad-I - 2005 (183) E.L.T. 378 (Tri.-Bang.) wherein it has been held that the allegations purely based on theoretical working out after taking into account certain private documents, without any corroborative evidence, is not sustainable in law. In the case of Arch Pharmalabs Limited v. CCE, Hyderabad - 2005 (182) E.L.T. 413 (Tri.-Bang.), this Bench has held that demands cannot be confirmed solely on the basis of commercial invoices and delivery challans prepared for raising higher bank loans so also entries made in private diaries does not lead to a conclusion that higher production has taken place and the goods have been cleared clandestinely in the absence of any corroborative evidence. In view of these rulings and the findings of the Commissioner being correct on the facts, the same is upheld by dismissing the Revenue appeal as devoid on merits. Ordered accordingly. (Operative portion of this Order was pronounced in open court on conclusion of hearing)
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2005 (6) TMI 405 - CESTAT, MUMBAI
Valuation - Advertisement by dealers ... ... ... ... ..... from assessable value. We find that the present case is fully covered by the decision of the Supreme Court in the case of Philips India Ltd. v. CCE, supra. We also find that the ratio of the decision of the Supreme Court in the case of CCE, Pune v. Bajaj Tempo Ltd. supra, relied on by the learned SDR, is not applicable in the present case as in that case the advertisement was done by the manufacturer and then they sent the bills to the dealers for re-imbursement. Re-imbursement of advertisement expenses by manufacturer from dealer, after initially incurring the same, is a different situation than the situation in the present case. The present case and the case of Philips India Ltd. v. CCE, supra, are on the same footing on the facts. Therefore, the ratio of the law in the case of Philips India Ltd. v. CCE, supra, is applicable in the present case. 6.We, therefore, find no merit in the appeal of the Revenue and the same is rejected. (Dictated and pronounced in the open Court)
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2005 (6) TMI 404 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Demand ... ... ... ... ..... Notification No. 25/2002-Cus. in respect of lsquo technology licence fee. The contention is also that demand is time-bar, the goods were assessed and show cause notice was issued on 3-3-2003 and there is no allegation of suppression. emsp 5.The contention of the Revenue is that the drawings cannot be considered as machine. Therefore, the benefit is rightly denied on the issue of time-bar. The contention of the Revenue is that the limitation starts from the date of payment of duty. 6.We find that in this case the authorities first assessed the drawings and design as part of imported machine and allowed the benefit of notification in spite of the fact that the appellant claimed the classification under Chapter 49 which covers design and manual. In these circumstances, prima facie applicant had a strong case in their favour. Therefore, the pre-deposit of whole of the duty is waived for hearing of the appeal. Stay petition is allowed. (Pronounced and dictated in the open Court.)
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2005 (6) TMI 403 - CESTAT, NEW DELHI
Cenvat/Modvat - Declaration ... ... ... ... ..... ssee. emsp 3.The claim of the appellants for credit on the polythene bags, deserves to be allowed in view of the Board rsquo s Circular No. 37/90-CX. 8, dated 3-7-90 wherein the Board has permitted the Modvat credit on the packing material where final products are chargeable to specific rate of duty. The non-filing of the correct declaration by the appellants did not debar them from claiming the credit in view of the amended provisions of Rule 57G. emsp 4.In the light of discussion made above, the impugned order stands modified regarding the Modvat credit. However, the penalty, keeping in view the facts and circumstances of the case, is set aside in toto against the appellants The appeal accordingly stands disposed of.
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2005 (6) TMI 402 - CESTAT, BANGALORE
Penalty for dealing with smuggled goods ... ... ... ... ..... ned Commissioner rsquo s findings that in the absence of seized goods, the appellants can be charged for having dealt with illicit foreign branded goods. The appellants have denied having dealt with foreign branded goods and the same had been smuggled into India. Their contention is that they were all non-notified goods and were easily available in the market. In the absence of foreign brand illicit goods having been seized from the appellants, the presumption cannot be drawn that the appellants have dealt with foreign goods. The Revenue has not discharged their burden to prove that the appellants have dealt with foreign branded illicitly smuggled goods. The citations relied by the Counsel clearly apply to the facts of the case. Respectfully following the same, we set aside the order in so far as the appellants appeal are concerned. The appeals are allowed with consequential relief if any. (Operative portion of this Order was pronounced in open Court on conclusion of hearing)
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2005 (6) TMI 401 - CESTAT, NEW DELHI
Confiscation of goods - Smuggled goods ... ... ... ... ..... goods, had been effected at the first instance by the Police from the respondents and later on he handed over the goods to the Customs Authorities, and as such even otherwise presumption provided under Section 123 of the Act, could not be raised. It was for the revenue to prove the smuggled nature of the goods. The claim laid down by the respondents regarding the seized goods did not absolve the revenue of their total responsibility to prove smuggled nature of the goods. Even if it is accepted that the burden shifted on the respondents for having claimed the goods, still no mileage can be drawn from that by the revenue, as they had been able to prove their lawful possession under the valid documents and baggage receipts as is evident from the findings of the Commissioner (Appeals) at internal page 5 of the impugned order. Therefore, I do not find any illegality in the impugned order and same is upheld. Appeals of the revenue are dismissed. (Order dictated in the open Court.)
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2005 (6) TMI 400 - CESTAT, CHENNAI
Demand - Shortage of excisable goods - Penalty ... ... ... ... ..... Ltd. v CESTAT, New Delhi - 2004 (174) E.L.T. 154 (MP), wherein an order of the Tribunal confirming demand of duty against the assessee on a certain quantity of excisable goods found short by the department was upheld by the Court. On a perusal of the text of the High Court rsquo s judgment, I find that admitted shortage of excisable goods would ipso facto attract demand of duty of excise. In the instant case, virtually, the shortage of 52 MTs of CTD bars is an admitted fact. According to the High Court rsquo s ruling, such a shortage vis-a-vis RG-I stock is conclusive evidence of removal of goods without payment of duty. In the circumstances, the demand of duty raised on the assessee by the original authority requires to be restored. However, as the duty was paid prior to issuance of show cause notice, the penalty imposed by the original authority cannot be sustained in law. 3.In the result, the Revenue rsquo s appeal is partly allowed. (Dictated and pronounced in open Court)
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2005 (6) TMI 399 - CESTAT, MUMBAI
Cenvat/Modvat - Rate ... ... ... ... ..... directly by the manufacturer of excisable goods for his own use and received in the factory of such manufacturer, it is not disputed that the appellant bought the goods on high seas sale basis and filed the bill of entry for clearance of the goods in question. As such, it is the appellant, who has to be considered the exporter. Mumbai Commissionerate Public Notice No. 33/99, dated 4-3-99, referred to by the ld. Consultant clarifies that the last buyer of the consignment on high seas sale basis is to be regarded as the importer. He is the one who has filed the bill of entry and completed all other formalities and has paid the customs duty. In any case, having already held that restriction was not applicable in respect of the goods imported by the appellant. The above ground of the Revenue becomes frivolous. emsp 4.In view of the above, I set aside all the impugned orders and allow the three appeals with consequential relief to the appellants. (Pronounced in Court on 22-6-2005)
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2005 (6) TMI 398 - CESTAT, CHENNAI
Production capacity based duty - Demand and refund ... ... ... ... ..... ut of the purview of a refund claim filed in respect of excess duty paid under Section 3A. (c) In the case of Kothi Steel Ltd. v. CCE, Vadodara 2004 (167) E.L.T. 545 (Tri.-Mumbai) cited by ld. Counsel, it was held by the West Zonal Bench that the bar of unjust enrichment created under Section 11B was not applicable to a refund claim relating to duty paid under Section 3A of the Central Excise Act. On the other hand, in the case of K.B. Rolling Mills v. CCE, Hyderabad 2004 (166) E.L.T. 345 (Tri.-Bang.) cited by ld. SDR, it was held by a co-ordinate Circuit Bench (Hyderabad) that the doctrine of unjust enrichment was applicable to such refund claims also. 3. emsp As I am confronted by conflicting decisions of the Tribunal, I am unable to proceed further in the present case. In the circumstances, Registry is directed to place the records before the Hon rsquo ble President for constituting a Larger Bench to resolve the above conflict. (Order dictated and pronounced in open Court)
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2005 (6) TMI 397 - CESTAT, NEW DELHI
Interest - Refund ... ... ... ... ..... nd of the amount pre-deposited by them in terms of Tribunal rsquo s order. The refund of all those amounts was sanctioned within the stipulated period from the dates of filing of the application. 4.Appellants have claimed interest on the refunded amounts from the date of deposits, but the same, in my view, has been rightly declined to them by the authorities below. The right to claim the refund of the pre-deposited amounts accrued to the appellants for the first time only on the date of the Tribunal rsquo s decision through which the appeals were remanded for fresh decision to the adjudicating authority after setting aside the Order-in-Appeal. When the amounts had been refunded to them within three months from the date of filing of the application, they are not entitled to claim any interest from the date of deposits. Therefore, the impugned order which is common in both the appeals is upheld and the appeals of the appellants are dismissed. (Dictated and pronounced in Court).
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2005 (6) TMI 396 - CESTAT, MUMBAI
Refund - Unjust enrichment - Applicability of ... ... ... ... ..... re, the provisions of Section 11B are not applicable, cannot be accepted for the reason that the process of completing the verification for the purpose of grant of refund was pending even after the amendment by way of Central Excise and Customs Law (Amendment) Act, 1991 came into force on 20-9-1991 and therefore, the claim for refund has been correctly treated as a pending case. Therefore, applying the ratio of the decision of the Apex Court in Mafatlal Industries v. Union of India 1997 (89) E.L.T. 247 (S.C.) para 99 of the judgment which has upheld its decision in UOI v. Jain Spinners Limited - 1992 (61) E.L.T. 321 (S.C.) is squarely applicable and the appellants are therefore, required to cross the hurdle of unjust enrichment. There is no dispute that the duty burden has been passed on to their customers. Therefore, the refund amount has been correctly credited to Consumer Welfare Fund. We see no reason to interfere with the impugned order and accordingly reject the appeal.
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2005 (6) TMI 395 - CESTAT, KOLKATA
Confiscation and penalty - Smuggled goods ... ... ... ... ..... which was seized from the Railway Station Purnea was purely importable in term of exim policy. The Department has not produced any evidence to prove his charge. It is admitted that the copper scrap is not notified item under Section 123 of the Customs Act. Therefore no presumption can be drawn regarding smuggled nature of the goods. In such cases the burden always lies upon the Revenue to prove the smuggled nature of the goods. In present case the Revenue fails to prove the smuggled nature of the goods. They could not produce any evidence. The case has been decided only on the ground that such huge quantity of scrap could not be generated at a place like Forbesganj from where the goods had been consigned. This is not sufficient to confiscate the goods or to impose the penalty on the appellant. Appeal deserves to be allowed. 6.Consequently I set aside the impugned order and allow the appeal with consequential relief to the appellant. (Dictated and Pronounced in the open Court)
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