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Order by	TMI Citation Date of Decision

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Showing 161 to 180 of 676 Records

• 2007 (7) TMI 555 - CESTAT, AHMEDABAD
  

  Confiscation and redemption fine - Misdeclaration

  
  
  ... ...
  ... ... ..... Commissioner (Appeals) relying on Chemical Dictionary and other literature has held that Zinc containing 98 metal content should only be considered as Zinc in pure form (Anode) and therefore held that the mis-declaration of description as not sustained. He also held that the value of US 1000 pmt. relates to prevailing market value Zinc anode and the same cannot be applied to the scrap. Further, he held that the enhancement of value for Zinc Scrap (Saves) when there was no evidence of contemporary importation at higher price was also not sustainable. 4. emsp The Department has not given any evidence to contradict the above specific findings of the Commissioner (Appeals) that the imported product which was ought to be classified as Zinc Anode could not be treated as Zinc Anode and that the value has been enhanced without support of contemporary higher import prices. Therefore, there are no merits in the appeal of the Department. 5. emsp Appeal is rejected. (Pronounced in Court)

  ---

• 2007 (7) TMI 554 - CESTAT, AHMEDABAD
  

  Demand - Limitation - Suppression or mis-statement

  
  
  ... ...
  ... ... ..... g a container as in unassembled form it is required that the same is closed on three sides and open only at one end. When they have introduced new item, they have not furnished the relevant detai1s. 6. emsp We have carefully considered the submissions made from both sides. We find that the description adopted by the buyers of the product and one declared by the appellant in the classification list are one and the same. They have given a broad description. In addition, the Chapter heading refers to containers not only in assembled condition but also in unassembled condition. Under these circumstances, we do not find any material to support the allegation of suppression or mis-statement on the part of the appellant. Therefore, invoking extended time is not sustainable. Since we are allowing the appeals on the time bar aspect, we do not intend to discuss the merits of the case. 7. emsp The appeals are allowed with consequential relief. (Dictated and pronounced in the open Court)

  ---

• 2007 (7) TMI 553 - CESTAT, AHMEDABAD
  

  Confiscation and penalty

  
  
  ... ...
  ... ... ..... n for confiscation of goods and imposition of penalty. The deposition of the authorized person and executive Director that there might have been calculation mistake, cannot be brushed aside. 8. emsp In short illicit procurement of raw material and intention for non accountal of the seized goods on the part of the appellant unit is not proved. Further, as discussed above methodology adopted to come to conclusion of excess stock of raw material was not proper. In the circumstances, the benefit of doubt goes to appellants. rdquo 5. emsp As rightly pointed out by the Commissioner (Appeals), as a 100 EOU they were entitled to receive duty free raw material therefore, the explanation that excess found was due to some accounting error appears reasonable. 6. emsp No valid grounds have been adduced to interfere with the findings and reasonings given by the Commissioner (Appeals). 7. emsp The appeal by the Department is, therefore, dismissed. (Dictated and pronounced in the open Court)

  ---

• 2007 (7) TMI 552 - CESTAT, AHMEDABAD
  

  Redemption fine - Quantum of

  
  
  ... ...
  ... ... ..... t part of the State of Gujarat, which was outside the jurisdiction of Commissioner of Customs, Jamnagar and Commissioner, Customs, Kandla. The appellants have not denied that Surat territorially falls within the jurisdiction of Commissioner, Customs, Ahmedabad. 6. emsp It is seen that the appellant have not denied that seized goods were removed from the warehouse in violation of the condition of Notification No. 53/97-Cus., dt. 3-6-97. As such, in view of the above discussion, I hold that the same are liable for confiscation inasmuch as the same were seized at Surat. The value of seized goods is to the tune of Rs. 10 lakhs. As such, redemption fine of Rs. l lakh cannot be considered to be on the higher side, especially when the duty and penalty stand set aside on the technical ground. Accordingly, I am of the view that said redemption fine imposed by authorities below, does not call for any further reduction. Appeal is, accordingly, rejected. (Pronounced in Court on 3-7-2007)

  ---

• 2007 (7) TMI 551 - CESTAT, AHMEDABAD
  
  ... ...
  ... ... ..... wed to be redeemed of redemption fine and penalty imposed. This dispute is not being dealt with in the present appeal by the Department. 3.2 emsp In the same order, the Original Authority demanded approximate duty on Ball Bearings valued approximately Rs. 4.5 lakhs, said to have already been disposed off in the above manner. 4. emsp The Commissioner (Appeals) held that inasmuch as the goods have already been disposed off and hence have not been confiscated, Section 125(2) of the Customs Act will not be invokable in respect of goods valued Rs. 4.5 lakhs. As regards demand of duty by invoking Section 28, the same cannot be done inasmuch as the show cause notice has not invoked the same. 5. emsp No valid grounds have been adduced to interfere with the said findings and reasonings of the Commissioner (Appeals). 6. emsp In view of the above, the appeal by the Department is dismissed. The connected cross-objection is also accordingly disposed off. (Dictated and Pronounced in Court)

  ---

• 2007 (7) TMI 550 - CESTAT, AHMEDABAD
  

  Order of Appellate Tribunal - Modification of order - Valuation

  
  
  ... ...
  ... ... ..... lant. 3. emsp In narration of the facts, this claim regarding multi-piece package as made by the Department has been recorded and nowhere it is mentioned that the same is accepted by the appellant. 4. emsp Therefore, as a matter of clarification, Para 4 is amended as follows ldquo 4. emsp The relevant facts in brief are that the appellants manufacturing the product namely, Fair and Lovely Ayurvedic Cosmetics Cream, Ayush Shampoo and Ayush Hair Oil, Clinic Plus Shampoo falling under Chapter No. 33 of the Schedule to the Central Excise Tariff Act, 1985 packs in the sachet/pouch containing weights/measures below 10 mg/ml duly printed with maximum retail price on each sachet/pouch and cleared in corrugated boxes which are claimed by the Department as Multipiece package as defined under Rule 2(j) of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. rdquo 5. emsp The modification petition is disposed off on the above terms. (Dictated and pronounced in Court)

  ---

• 2007 (7) TMI 549 - CESTAT, AHMEDABAD
  

  Aluminum sections, sheets etc.

  
  
  ... ...
  ... ... ..... al products. Windows, doors etc. come into existence only upon, installation along with other members. These are constructed piecemeal. Items do not come into existence as identifiable commercial products in a factory or other manufacturing premises. The appellant rsquo s contention that construction at site does not involve manufacture of excisable goods is covered by judgment of the Apex Court in the case of CCE, Nagpur v. Wainganga Sahkari S. Karkhana Ltd. and the decision of the Tribunal in the case of Suvidha Engineers (India) Ltd. v. CCE, Delhi. The duty demand in the present case is not sustainable. In the absence of duty demand, penalties are also not justified. 7. emsp The facts of the present case which have been narrated in detail by us are identical to the facts of in the case of M/s. AGV Alfab Ltd. cited supra. Following the ratio of the above decision, the appeals deserve to be allowed. 8. emsp Appeals are allowed with consequential relief. (Pronounced in Court)

  ---

• 2007 (7) TMI 548 - CESTAT, MUMBAI
  

  Valuation - Undervaluation

  
  
  ... ...
  ... ... ..... n contravened requires to be accepted. We, therefore, set aside the impugned order and remand the case for fresh decision to the jurisdictional Commissioner who shall first furnish copies of the relevant invoices as well as the market enquiry report to the appellants and then extend reasonable opportunity to the appellants of being heard in their defence, before passing fresh orders. All issues are left open for de novo decision. 4. emsp In the result, the appeals are allowed by way of remand. Annexure Appellant Duty Penalty 1. Shri Nazareth Soares Rs. 59,56,010/- Rs. 59,56,010/- Rs. 1,33,57,526/- Rs. 1,33,57,526/- Rs. 20,000/- 2. Devandra Gosalia Rs. 6,00,000/- Rs. 13,00,000/- 3. Dinesh Joshi Rs. 2,00,000/- 4. Ketan Popat Rs. 1,00,000/- 5. Pratap Rathod Rs. 50,000/- 6. M/s. M.S. Exports Rs. 10 Lakhs Rs. 5 Lakhs 7. M/s. Mujawar and Sons Rs. 2 Lakhs 8. Jagdish Dhanawade Rs. 10,000/- 9. Deepak Joshi Rs. 10,000/- 10. M/s. Mahendra Shipping Agengy Rs. 50,000/- 11. Manish Mehta -

  ---

• 2007 (7) TMI 547 - CESTAT, KOLKATA
  

  Confiscation and penalty - Illegal Export

  
  
  ... ...
  ... ... ..... ants who have disclaimed the goods would have no right to the impugned goods confiscated as the same did not belong to them according to their own submissions before the Customs Authorities. 8. emsp In regard to appeal No. CDM-15/04 relating to appellant Shri Raj Kumar Gupta, it is the submission of the Ld. Advocates that the Adjudicating Commissioner has not passed a specific order in regard to the appellant nor a copy of the adjudication order has been sent to him. However, the appellant is aggrieved as the impugned goods claimed by him has been ordered to be confiscated under paragraph 4.10. The said appellant had claimed the impugned goods and in view of our order holding that the impugned goods are not liable to be confiscated, the appellant is entitled to the release of the said goods. 9. emsp The release of the goods will be subject to orders from any competent court, if any. All the 14 appeals are allowed in the above terms. (Dictated and pronounced in the open Court)

  ---

• 2007 (7) TMI 546 - CESTAT, KOLKATA
  

  Demand - Default in fortnightly payment of duty - Held that: - the payment by Cenvat credit is as good as payment by debiting account current and that the appellants have not violated the direction for which they have been held accountable under the impugned order - appeal allowed.

  ---

• 2007 (7) TMI 545 - CESTAT, AHMEDABAD
  

  Cenvat/Modvat - Capital goods

  
  
  ... ...
  ... ... ..... er rule 57G and 57-I by Notification No. 7/99-(NT), such a lapse is required to be condoned. Hon rsquo ble CEGAT from time to time in a number of cases has held that minor procedural infractions should not come in way of substantial benefit when all substantive conditions are fulfilled. rdquo 3. emsp We find that the Tribunal in the case of Hindustan Cables Ltd. v. C.C.E., Bolpur - 2001 (137) E.L.T. 735 (Tri.-Kolkata) has held that prohibition on availment of credit before installation was introduced only from 1-1-1996 and as such, availment of credit before the said period in respect of the capital goods received but not installed cannot be denied. We find that the period in the present appeal is also prior to the said date. In any case, the credit so availed was utilized only after installation of the capital goods. As such, we find no infirmity in the order of the Commissioner (Appeals) and accordingly, reject the appeal filed by the Revenue. (Pronounced in the open Court)

  ---

• 2007 (7) TMI 544 - CESTAT, CHENNAI
  
  ... ...
  ... ... ..... he said date. This argument requires to be rejected at once. The import in question had taken place, admittedly, prior to 28-9-96. The appellant is not able to say for certain as to when the respondents committed the offence punishable under Section 114A. The Revenue, however would not dispute the fact that a penalty under Section 114A is consequential to demand of duty under Section 28 of the Customs Act. The SCN demanded duty on the goods imported by the respondents prior to 28-9-96. Therefore, the cause of action for a penalty under Section 114A would arise on the date of import only, which, in the present case, is prior to 28-9-96. Ld. Commissioner (Appeals) dropped penalty by giving the ldquo benefit of doubt rdquo to the respondents. We have no doubt in our mind and we hold that, on the facts of this case. Section 114A of the Customs Act is not applicable to the respondents. In the result, the appeal of the Revenue gets dismissed. (Dictated and pronounced in open court)

  ---

• 2007 (7) TMI 543 - CESTAT, AHMEDABAD
  

  Confiscation and penalty

  
  
  ... ...
  ... ... ..... ts. He referred to various decisions of the Tribunal wherein subsequent production of certificates was taken into account for the purposes of grant of exemption benefits. 4. emsp After hearing the ld. DR, I find that the timber logs were allowed to be cleared by the customs without insisting on the release order. If production of release order was required at the time of clearance of the timber logs, it is not understood as to how ldquo out of charge rdquo was granted by the customs authorities without insisting on production of the said certificate. However, the certificates were produced subsequently within a period of less than 15 days. The appellants have also explained reasons for late production of said certificates. As such, I find no justification for confiscation of the goods or for imposing personal penalties upon the appellants. Accordingly impugned order is set aside and all the appeals are allowed with consequential relief to the appellants. (Pronounced in Court)

  ---

• 2007 (7) TMI 542 - CESTAT, AHMEDABAD
  

  Appeal - Limitation - Delay of 817 days in filing - Condonation of

  
  
  ... ...
  ... ... ..... was condoned enabling filing of appeal against the assessment order of sales tax authority. 4. emsp We have carefully considered the submissions. After rendering of the order of the Commissioner (Appeals) dated 4-2-2005, the applicant chose not to file an appeal. The claim that they paid under protest has no meaning, when they have not filed appeal against the order dated 4-2-2005. Further even after the Hon rsquo ble Supreme Court rendered their decision in January 2006 and which was published in February 2006, and they started availing the benefit from February 2006, they have not chosen to file the appeal within a reasonable period. Further, the issue in these appeals relates to short period. 5. emsp We hold that no sufficient cause has been shown for granting condonation of such a long period of delay. 6. emsp Therefore, the condonation applications are dismissed stay petitions are dismissed and consequently, the appeals are also dismissed. (Pronounced in the open Court)

  ---

• 2007 (7) TMI 541 - CESTAT, MUMBAI
  

  Interest and penalty

  
  
  ... ...
  ... ... ..... in the case of Tube Investments of India Ltd. has also granted the benefit of time-bar. The prayer for setting aside the penalty and interest is acceptable in view of the explanation carved out. in Clause 82 of the Finance Act and in terms of judgment rendered in the case of Chandrapur Magnets and Tuber Investments of India Ltd. The appellants have already reversed the 8 amount and hence, penalty and interest is not required to be levied in the matter. The appeal is allowed by setting aside the penalty and interest in the matter. rdquo 6. emsp I find that the above ratio of the Division Bench squarely covers the issue before me. As such, the issue is squarely covered in the favour of the appellants and the impugned order to the extent of confirmation of duty is upheld and the impugned order to the extent it upholds imposition of penalty and interest is liable to be set aside and I do so. Accordingly, the appeal is allowed as indicated above. (Dictated and pronounced in Court)

  ---

• 2007 (7) TMI 540 - CESTAT, NEW DELHI
  

  Cenvat credit of Service tax - Outward freight

  
  
  ... ...
  ... ... ..... s included the cost of the transport in question also and duty was paid on an assessable value including the disputed freight. His contention is that in such a case, credit is available in terms of the decision of this Tribunal in the case of Gujarat Ambuja 2007 (6) S.T.R. 249 (Tribunal) 2007 TIOL 539 CESTAT, Delhi . 4. emsp The factual position, as to whether the disputed freight formed part of the assessable value, is required to be verified. If it had, service tax paid on such outward transport would be available as credit. 5. emsp In the result, the impugned order is set aside and the case is remanded to the Commissioner (Appeals) for a fresh adjudication. (Dictated and pronounced in open Court)

  ---

• 2007 (7) TMI 539 - CESTAT, CHENNAI
  

  Appeal by Department - Review by Committee of Commissioners

  
  
  ... ...
  ... ... ..... ts contained in the above application, I must readily accept the submission of learned consultant. The impugned order was accepted by the Committee of Commissioners on 14-7-2006 in view of a decision of the Hon rsquo ble Supreme Court. Later on, the appellant-Commissioner came across a decision dated 21-8-2006 of the Tribunal rsquo s Larger Bench (Gauri Plasticulture (P) Ltd. v. Commissioner of Central Excise, Indore 2006 (202) E.L.T. 199 (Tribunal) 2006-TIOL-1121-CESTAT-MUM-LB and decided to file appeal against the impugned order, in the light of such decision. In other words, after the Review Committee accepted the impugned order, the appellant-Commissioner reviewed it on his own accord. The appellant was acting without jurisdiction. The Appellate Commissioner rsquo s decision, once accepted by the Review Committee, stands accepted by the Revenue. The present appeal is dismissed as not maintainable. Misc. petitions also get dismissed. (Dictated and pronounced in open Court)

  ---

• 2007 (7) TMI 538 - ITAT MUMBAI
  

  Capital gains - Long term capital gains

  
  
  ... ...
  ... ... ..... ed dated 2-5-1992 was not the tenancy rights but the building lsquo Janki Kutir rsquo itself and therefore, what was to be allowed as deduction for working out the capital gains was not the cost of tenancy but the cost of ownership rights. In view of the said finding, the Tribunal remanded the matter, back to the Assessing Officer to work out the market value of lsquo Janki Kutir rsquo as on 4-8-1983 and, allow as a deduction the cost of the asset sold to work out the capital gains. This is a pure finding of fact. No interference is called for. 6. Thus as we have held that the nature of asset which is transferred is only certain rights in a flat, the date of acquisition should necessarily be the date of entering into an agreement i.e., 15-2-1992. Thus the gain in question should be assessed as a long-term capital gain. In view of our above finding we have to necessarily reject the first contention of the assessee. 7. In the result, the appeal filed by the assessee is allowed.

  ---

• 2007 (7) TMI 537 - CESTAT, MUMBAI
  

  Refund claim - EOU, 100% EOU - Duty paid under protest - EXIM - Capital goods

  
  
  ... ...
  ... ... ..... e, deserves to be set aside. The lower authority is directed to grant the subject refund claim to the appellants, if otherwise admissible under the provisions of Section 11B of the Central Excise Act, 1944 rdquo . As against the above findings of the ld. Commissioner (Appeals), the Revenue has not produced any evidence to show that the respondents had not paid the duty to the suppliers of the goods and the investigation has revealed that the respondent is in error. If it is undisputed that the respondent is a 100 EOU, the rights of the respondents to get the capital goods without payment of duty cannot be abrogated. Hence, in the facts and circumstances of the case, the order-in-appeal passed by the ld. Commissioner (Appeals) is correct and legal and does not require any interference. 3. emsp Accordingly the appeal filed by the Revenue is rejected and the cross-objection filed by the respondent being in support of the Order-in-Appeal, is also disposed off. (Dictated in court)

  ---

• 2007 (7) TMI 536 - CESTAT, MUMBAI
  

  Demand - Warehoused goods - Abandoned goods

  
  
  ... ...
  ... ... ..... on 68 of the Customs Act which clearly specifies that ldquo provided that the owner of any warehoused goods may, at any time before an order for clearance of goods for home consumption has been made in respect of such goods, relinquish his title to the goods upon payment of rent, interest, other charges and penalties that may be payable in respect of the goods and upon such relinquishment, he shall not be liable to pay duty thereon rdquo . Admittedly as stated supra there was no order passed for clearance of the goods for home consumption. Therefore, the appellants have right to relinquish their title to the impugned goods even after expiry of bond period before passing an order for clearance for home consumption. The aforesaid citation rendered by the Divisional bench is squarely applicable to the present case. Therefore, the impugned orders are liable to be set aside. In the result appeal is allowed while setting aside the impugned orders. (Pronounced in Court on 31-7-2007)

  ---

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