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Case Laws
Showing 161 to 180 of 608 Records
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2004 (7) TMI 544 - CESTAT, MUMBAI
Cenvat/Modvat - Capital goods - Excess depreciation claim - Words and Phrases ... ... ... ... ..... im is the correct interpretation of the Rule and the phrase ldquo fraction thereof rdquo . He relied on the provisions contained in the Companies Act, 1956 and the Income Tax law. 5. emsp We have perused the rule and carefully considered the rival contentions. The expression ldquo a year of use or fraction thereof rdquo , according to us does not relate to the fraction of a quarter but relates only to the year of use or a fraction thereof. We find that the interpretation given to the phrase used in the rule by the Assistant Commissioner which has been adopted by the Commissioner (Appeals) is correct. The appellant rsquo s contention that the Commissioner (Appeals) has not independently arrived at any finding but only confirmed the order of the Assistant Commissioner is not tenable inasmuch as the Commissioner (Appeals) in his order adopted the reasoning given by the Assistant Commissioner. We see no infirmity in the order of the Assistant Commissioner. The appeal is rejected.
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2004 (7) TMI 543 - CESTAT, NEW DELHI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... of Entry placed on record, there is nothing to suggest that the goods detailed therein were purchased by M/s. Raydak Projects Ltd. and the delivery of the goods was also taken by that company from the customs. There is no reference even to the high sea sale of the goods to that company by the importer in the Bill of Entry. Similarly, there is no document on record to prove that M/s. Raydak Projects Ltd. transferred the goods to the appellants by way of sale. No invoice or any other document in that regard has been placed on record by the appellants. Their ocular version regarding receipt of the goods on payment of price including duty from M/s. Raydak Projects Limited, cannot be accepted as a gospel truth so as to allow them Modvat credit on those goods. The credit, in my view, has been rightly declined to them by the authorities below. Therefore, I do not find any illegality in the impugned order of the Commissioner (Appeals) and the same is upheld. The appeal is dismissed.
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2004 (7) TMI 541 - CESTAT, MUMBAI
Cenvat/Modvat - Recovery of credit ... ... ... ... ..... ovided under Rule 6 if not paid by an assessee. He therefore pleaded that the case be remanded to the original authority with directions to initiate proceedings in accordance with Rule 12 of the CENVAT Credit Rules, 2002. 5. emsp We observe that the CENVAT Credit Rules, 2002 do provide a machinery to collect such amounts as were not paid as stipulated under Rule 6 of the said Rules. We observe that Section 11A of the Central Excise Act, 1944 was invoked in the show cause notice thus satisfying the provisions of Rule 12 of the CENVAT Credit Rules, 2002. The matter is remanded to the original authority for taking appropriate action as provided under the law. While examining the issue, care may be taken to see whether these provisions under CENVAT Rules are applicable retrospectively in the light of the judgment of the Hon rsquo ble Madras High Court decision in the case of Eternit Everest Ltd. cited supra and relied upon by the Tribunal. 6. emsp The appeal is allowed by remand.
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2004 (7) TMI 540 - CESTAT, NEW DELHI
Valuation - Undervaluation ... ... ... ... ..... enhanced value of the goods. The appellants challenged this aspect before the Commissioner (Appeals) specifically but the Commissioner (Appeals) in the impugned order has not given any finding on this issue. 5. emsp In this case, the appellants declared the value of the goods in question US 450 PMT. In respect of two imports, the Commissioner of Customs, Amritsar vide orders dated 16-3-2001 dropped the proceedings and accepted the price declared by the appellants US 450 PMT. In the present case, the customs authorities enhanced the value to US 700 PMT on the basis of some imports made at ICD, Tughlakabad, by the some other importers. But neither the Adjudicating Authority nor the Commissioner (Appeals) has mentioned any bill of entry vide which same or similar goods were imported US 700 PMT. In the absence of any proof, we have no hesitation in holding that the enhancement of the value is without any basis. Therefore, the impugned order is set aside and the appeal is allowed.
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2004 (7) TMI 539 - CESTAT, MUMBAI
Car - Import of - Audi Cars - Exemption, based on Cubic capacity - Valuation - Transaction value - Misdeclaration - Duty liability, confiscated goods - Penalty
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2004 (7) TMI 538 - CESTAT, MUMBAI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... credit after rescinding of Notification No. 201/79-C.E. The issue being different I hold that the same is not relevant. 5. emsp In this connection, the appellants have placed reliance on the Notification No. 16/94, dated 30th March, 1994. In terms of the said notification credit taken on the basis of subsidiary certificate issued by the Range Superintendent in respect of duty paying documents issued before 1st April, 1994 and the credit taken under the said document on or before 30th June, 1994 is valid credit. It is obvious in this case, that the credit has been taken by the appellants in terms of the parameters prescribed in the said circular and is therefore admissible. Hence this part of the credit is required to be allowed. 6. emsp Accordingly, in terms of the discussion above, the credit to the extent of Rs. 1,05,021/- is allowed and the balance is rejected. The appeal is partly allowed and the orders of the lower authorities are modified to the extent indicated above.
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2004 (7) TMI 537 - CESTAT, KOLKATA
Refund claim - Limitation ... ... ... ... ..... d before the competent authority before the expiry of the period of six months. In the present case, all the applications except in one case filed after the expiry period of six months. The submission of the ld. Consultant is that this was an anticipated duty which is not acceptable. Section 51 of the Customs Act makes it clear that no goods can be exported without payment of the duty. The respondent has not produced any such document which speaks on anticipated duty or provisional assessments. The assessments were final and consequently, the cess was paid. All refund claims pertaining to cess are also governed by the Customs Act. In the present case, the applications have been filed after expiry period of six months and are time barred. The Commissioner (Appeals) erred in allowing the appeal. 5. emsp Consequently, I set aside the impugned order and allow the appeal and restore the Order-in-Original passed by the Assistant Commissioner of Customs. S. P. also gets disposed of.
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2004 (7) TMI 536 - CESTAT, NEW DELHI
Confiscation - Non-accountal of goods - Show Cause Notice - Authority to issue - Cenvat/Modvat - Redemption fine and penalty
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2004 (7) TMI 535 - CESTAT, CHENNAI
... ...
... ... ..... for them to pursue the Appeal filed by them against Order-in-Original No. 122/97-Cus., dated 19-9-1997 passed by the Commissioner of Customs, Custom House, Chennai, before the Customs, Excise Service Tax Appellate Tribunal, South Regional Bench, Chennai, as it would cause them avoidable inconvenience. Therefore, it will help the Applicants, if the Hon rsquo ble Customs, Excise and Service Tax Appellate Tribunal, South Regional Bench, Chennai, transfer the said Appeal filed by the Department to the Hon rsquo ble Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore, for disposal, as it would be nearer to their location, instead of at Chennai. rdquo 2. emsp We are not impressed by the above reason. The appeal is pending since 1998. The Bangalore Bench has been functioning for more than 3 years now. This application has been filed only in February this year, and that too, stating flimsy reasons. It is bereft of bona fides. The application is rejected.
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2004 (7) TMI 534 - CESTAT, CHENNAI
Appeal - Limitation ... ... ... ... ..... and officers of the Commissionerate were posted only later on. It appears, the Commissioner had to wait for some time for the full complement of supporting staff to join the Commissionerate. The Order-in-Appeal impugned in the present appeal was received by him on 31-3-2003. This appeal was filed on 28-10-2003. After elaborating the above circumstances, ld. SDR points out that, in respect of Orders-in-Appeal received by the Commissioner subsequently, appeals have been filed promptly. The explanation for the delay is convincing. We condone the delay and leave the appeal to arise in its turn.
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2004 (7) TMI 533 - CESTAT, MUMBAI
Warehoused goods - Rate of duty - Expiry of warehoused period ... ... ... ... ..... a) The issue of levy of interest on warehoused goods after warehoused period was over has been settled by the Apex Court in the case of CC v. Jayathi Krishna and Co. 2000 (119) E.L.T. 4 (S.C.). The interest is held to be an accessory to the principal and if principal is not payable, so is the interest on it. Therefore, the interest on goods exported out of India is not payable since duty thereon is not demanded. (b) As regards the raw material and finished goods, the rate of duty has to be levied as per the Apex Court decision in case of Simplex Casting, 2003 (155) E.L.T. 5 (S.C.) and thereafter interest thereon to be determined. The learned Advocate sought permission to export these materials. The duty demands thereon and the interest will have to be worked out after the export is not affected. For which the appellants will make the necessary application and effect the same within a period of six months from the date of this order. 4. emsp Appeals are allowed in above terms.
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2004 (7) TMI 532 - CESTAT, NEW DELHI
Cenvat/Modvat - Inputs ... ... ... ... ..... ned in Rule 57A and the notifications issued thereunder, the credit of specified duty allowed in respect of any inputs may be utilized towards the payment of duty of excise on any other final product whether or not such inputs have actually been used in the manufacture of such other final product, if the said inputs have been received and used in the factory of production on or after the first date of March, 1997. Therefore, the respondents having not availed the Modvat credit used in the manufacture of Dyed Textured Yarn, could pay the duty at the concessional rate from the Modvat Account taken by them on the Filament Yarn utilized by them in the manufacture of Synthetic Filament Textured Yarn. 6. emsp In the light of discussion made above, the impugned order passed by the Commissioner (Appeals) confirming the order of the adjudicating authority dropping the duty demand against the respondents is perfectly valid and the same is upheld. The appeal of the Revenue is dismissed.
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2004 (7) TMI 531 - CESTAT, BANGALORE
Stay/Dispensation of pre-deposit - Demand ... ... ... ... ..... Heard ld. JCDR appearing for the Revenue who distinguishes the judgments referred to by the appellant rsquo s representative and submits that the appellants should pre-deposit the disputed amount. 4. emsp On a careful consideration of the submissions made by both the sides and on perusal of the judgments referred to above, we notice that the supply made by their job worker should be treated as supply made by the assessee to the Ministry of Defence. The goods cleared through sister unit to the Ministry of Defence, prima facie, cannot be a ground to deny the benefit of the exemption under notification. In the light of the prima facie nature of the case in favour of the appellants, the stay application is allowed by granting waiver of pre-deposit of disputed amount and staying recovery till disposal of the appeal. 5. emsp As the amount involved in the matter is high, therefore the appeal is to be heard out of turn. The appeal to come up for final hearing on 30th November, 2004.
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2004 (7) TMI 530 - CESTAT, NEW DELHI
Demand - Clandestine removal - Assumption of clandestine removal based on power consumption - production based on ferro alloys consumption - shortage of ferro manganese -
HELD THAT:- The norms for power was 670 kwh/per ton of billet for 10/12 t furnace and 630 kwh for 25/30t furnace. These norms regarding consumption of power have not been disputed by the Revenue. The Adjudicating Authority has come to the conclusion, merely on the basis of three furnaces found to be working by the visiting officers, that the Appellants had indulged in a systematic manipulation of records of “power consumption. This finding is without any material brought on record.
It has also been contended by the Appellants that the supply of electricity to their Sub-station is made from 132/33, KVA Sonic Sub-station on direct feeder. There is nothing on record to show that the power required by the Appellants to manufacture the quantity of ingots and billets alleged to have been manufactured by them had been supplied by Sonik Sub-station to the Sub-station at the Appellants’ end. Thus the Revenue has not succeeded in proving its allegation that the Appellants have manipulated their records of power consumption.
Quantity of ferro alloys required to manufacture 1 ton of ingot/billet - As observed earlier, the Revenue has also not made any investigation in respect of another most vital raw material that is M.S. Scrap/Sponge iron. It has been held by the Tribunal in the case of Amba Cement & Chemicals,[1999 (9) TMI 314 - CEGAT, NEW DELHI], when the Revenue alleged the clandestine manufacture of cement on the basis of formula for use of lime stone per ton of cement; that “No investigation is conducted in respect of other raw-materials such as coal, gypsum and clay which are also required for manufacture of cement... As no investigation is conducted in respect of other raw materials which are essential for the production of cement, therefore, the demand on the basis of that appellants suppressed the receipt of one raw material is not sustainable.”
Shortage of ferro manganese noticed by the Central Excise Officers when they visited the factory premises on 18-1-93, we are of the view that the submissions made by the Appellants regarding issue on 16-1-93 has not been properly considered by the Adjudicating Authority. Shri S.K. Shukla, Stores Clerk of the Appellants, in his statement dated 18-1-93 had deposed that entries in respect of materials after 11-1-93 had not been made in the records and the entries regarding material issued after 14-1-93 were also not made even though the materials were issued for consumption on verbal request. This aspect requires to be examined by the Adjudicating Authority.
We, therefore, remand this aspect for re-consideration of the jurisdictional Adjudicating Authority. Thus the demand of duty as confirmed against the Appellants and penalty imposed on them are set aside. The issue regarding shortage of 6943 kg. of ferro manganese is remanded to the jurisdictional Adjudicating Authority for being adjudicated afresh in accordance with law.
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2004 (7) TMI 529 - CESTAT, MUMBAI
Demand and penalty - Ship-breaking ... ... ... ... ..... ier to 20-8-1986 and even confirmed demands, the duty was ordered to be waived. Therefore, the order of the Commissioner not complying with these clear instructions cannot be upheld, when it is found that in this case all the demands are up to the period of March 1986 and could not have been confirmed vide the impugned Order in view of the directions of the ministry and waived the duties prior to 20-8-1986 on the excisable goods resulting from the activity of breaking of ships. (e) When demands of duties cannot be confirmed and even confirmed demands have to be waived as per the directions issued by the Government of India, Ministry of Finance, Department of Revenue, Central Board of Excise and Customs, there can be no question of levy of duty on the appellants as arrived at by the Commissioner. The orders of penalties are therefore required to be set aside. 5. emsp Consequently, the orders so far as these appellants are concerned, are set aside and these appeals are allowed.
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2004 (7) TMI 528 - CESTAT, NEW DELHI
Demand - Valuation - Misdeclaration of weight ... ... ... ... ..... xplanation given by the exporter and as mentioned in the invoices the moisture contents were 23 to 25 at the time of packing of the goods and the price is paid by the importer on the basis of commercial weight only it cannot be said the appellant made any misdeclaration. The appellant is importing regularly the same goods from the same supplier and the Revenue has accepted the commercial weight mentioned in the invoices. The appellant produced the list of Bills of Entry showing the import of the same goods in the year from January, 2002 to December, 2003 wherein the customs authorities had accepted the commercial weight as declared by the appellant. In view of the explanation in respect of percentage of moisture given by the exporter we find that demand on the basis of commercial weight arrived at by the customs authorities is not sustainable and is, therefore, set aside, The appeal is allowed. The appellant is entitled to consequential relief, if any, in accordance with law.
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2004 (7) TMI 527 - CESTAT, NEW DELHI
Appeal - Limitation ... ... ... ... ..... days from the date of communication to him of such decision or order. The Section, however, provides that Commissioner (Appeals) can condone the delay further period of 30 days if the appellants satisfy that he was prevented by sufficient cause from presenting the appeal within 60 days. 5. emsp It is admitted by the Revenue that duty was paid on 6-11-2001 from that date the appeal filed by the appellants was within the period of limitation. Assuming we agree with the Revenue that date of assessment of Bill of Entry 19-10-2001 and Bill of Entry was handed over to appellants then also the appeal was represented within the period of 90 days (60 days 30 days). Hence as the appellants were in the process of payment of duty and releasing the goods from Customs authority, therefore, the delay is condonable. The impugned order is set aside and this appeal remanded to the Commissioner (Appeals) to decide the appeal on merit after affording an opportunity of hearing to the appellants.
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2004 (7) TMI 526 - CESTAT, NEW DELHI
Appeal - Restoration of ... ... ... ... ..... of appeal on the ground that the pre-deposit was not made within the time allowed by the Tribunal. 2. emsp We have considered the submissions of both the sides. The present application for restoration of appeal has been filed by the official liquidator. This fact itself shows that the financial position of the unit was very bad which forced the Registrar of Co-operative Societies to order liquidation of the unit. In view of these facts coupled with the fact that the amount of Rs. 3.5 lakhs has now been deposited, we restore the Appeal to its original number after recalling our Final Order dated 8-4-2003. We also take up the appeal for disposal as the Commissioner had dismissed the appeal filed by the unit for non-compliance with the provisions of Section 35. As the Commissioner (Appeals) has not considered the merits of the matter, we remand the same to him for deciding it afresh on merits after affording a reasonable opportunity to the appellants through official liquidator.
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2004 (7) TMI 525 - CESTAT, MUMBAI
EXIM - DEEC Scheme - Demand ... ... ... ... ..... ared by the appellants under DEEC but M/s. Akai Impex had cleared and exported the same under DEEC after obtaining the same on High Sea Sale Basis. He however, accepts that the appellant was the supporting manufacturer, therefore, there was no need for the High Sea Sale between appellant and M/s. Akai Impex. He also held that duty was liable and demanded the duty and imposed a penalty. 2. emsp The appellants are supporting manufacture of M/s. Akai Impex and have texturised the yarn and exported the same by effecting sealing of Export Marine Containers in their own factory. The exports by Merchant Exporter M/s. Alex Impex from factory of appellant was thereafter made. There is no finding of Textured goods having been diverted to Domestic area. There is therefore no cause for invoking duty on the goods so exported, even if they were not eligible to Notification No. 178/83. No penalty is called for. The order is set aside and appeal is to be allowed. 3. emsp Ordered Accordingly.
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2004 (7) TMI 524 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Demand ... ... ... ... ..... appellants. Counsel has drawn our attention to the technical literature available on record. This literature says that Ascorbyl Polyphosphate consists of stabilized (Phosphorylated) Na/Ca salt of L-ascorbic acid (Vitamin C). ldquo List No. 1 rdquo appended to the above Notification specifically named a large number of organic compounds, all of them covered by the description at Sl. No. 18 of the Table annexed to the Notification. Ascorbyl Polyphosphate is one of them. The Chemical Examiner rsquo s report apparently does not come anywhere near identifying the compound by name. It only says that the sample is composed of phosphorus-containing organic compounds. Prima facie, it appears, the denial of concessional rate of duty under the Notification to the importer on the strength of ldquo expert opinion rdquo of the above sort is not sustainable. The appellants have shown a strong prima facie case and, therefore, we grant waiver of pre-deposit and stay of recovery as prayed for.
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