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Showing 161 to 180 of 663 Records

• 2004 (8) TMI 615 - CESTAT, NEW DELHI
  

  Demand and penalty - Limitation - Extended period

  
  
  ... ...
  ... ... ..... , the duty has been demanded for the period from 1996-97 to 2000-2001. As the relevant information was suppressed from the Department prior to 17-3-98, the extended period of limitation will be applicable and demand prior to 17-3-98, will not be hit by the time limit under Sec. 11A of the Central Excise Act. Any demand for extended period from 17-3-98, is time-barred as the Department had acquired the knowledge of the fact of non-inclusion of cost of moulds supplied free of cost in the assessable value. A penalty is also imposable on M/s. Paradise Plastics Enterprises Ltd. However, a penalty equivalent to the amount of duty involved, is not warranted in the facts and circumstances of the present matters. A penalty of Rs. 50,000/-, payable by M/s. Paradise Plastics Enterprises Ltd. will meet the ends of justice. We, therefore, enhance the penalty to Rs. 50,000/-. Both the appeals are disposed of in the above terms. (Operative part of order pronounced in open Court on 5-8-2004)

  ---

• 2004 (8) TMI 614 - CESTAT, KOLKATA
  

  Cenvat/Modvat - Limitation

  
  
  ... ...
  ... ... ..... esent case the duty paying document is of 29th July, 1998 and credit has been claimed on 27th April, 1999 i.e. after the expiry of period of 6 months. The ratio of the decision relied upon by the appellant is not applicable on the facts of the present case. The question of 6 months rsquo limitation was not considered in all above mentioned decisions. In case of Krishna Valley Devp. Corpn. case, the original invoice issued by SAIL was defective and returned for rectification. A revised invoice was issued by SAIL after protracted correspondence. It was held that the period of six months be computed from date of revised invoice. In present case, Invoice was not revised or rectified whereas in present case the invoice which evidencing the duty paying character of the inputs is beyond the period of 6 months. I do not find any reasons to interfere with the finding recorded by adjudicating authority and I do not find any force in the appeal. emsp 4.Consequently I dismiss the appeal.

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• 2004 (8) TMI 613 - CESTAT, MUMBAI
  

  Cenvat/Modvat

  
  
  ... ...
  ... ... ..... n relation to manufacture and that aspect of the finding not challenged before us. 2. emsp It is well settled law, now, that an entity, essential to be used in or in relation to manufacture of the product is an input, eligible such Modvat. These are therefore no grounds in of Revenue appeal to deny the credit. 3. emsp Appeal is consequently dismissed. (Pronounced in Court on 23-8-2004)

  ---

• 2004 (8) TMI 612 - CESTAT, KOLKATA
  

  Production capacity based duty

  
  
  ... ...
  ... ... ..... n to the factory was disconnected on 11th July, 1999. The Commissioner has observed in his order that the unit has been closed down since 1998 and during the financial year 1999-2000 including the material period i.e. from 12/99 to 3/2000 the unit was under closure. When the factory was closed permanently, they were not under obligation to discharge the duty liability as there was no manufacturing activity. Similar view was expressed in the case of Sanjay Alloys Pvt. Ltd. v. Commr. of C. Ex., Bangalore. The Tribunal has held that ldquo Production capacity based duty - Factory closed permanently and intimation regarding same sent to Department - For period subsequent to date of closure assessee is not liable to pay duty - Section 3A of Central Excise Act, 1944. 2002 (147) E.L.T. 563 (Tribunal) followed (Para 4) rdquo . emsp 2.In view of above discussion, we do not find any force in the appeal filed by the Revenue. Consequently the appeal is dismissed. (Pronounced on 18-8-2004)

  ---

• 2004 (8) TMI 611 - CESTAT, MUMBAI
  

  Cenvat/ Modvat - Inputs - Delay in taking credit - Penalty

  
  
  ... ...
  ... ... ..... a period of six months within which credit can be taken of the duty paid on the inputs. In spite of the restriction the appellant had taken credit on the strength of an invoice dated 31-7-1995 after the expiry of six months. This is clearly not permissible. Taking such credit, which is not admissible on the ground that it is a procedural irregularity, is not acceptable. This provision is a substantial requirement to be followed by an assessee. 3. emsp I do not see any infirmity in the order of the lower authority. The appellant enjoyed the benefit of credit, which is not admissible in contravention of Central Excise Rules. Penalty is rightly imposed. 4. emsp Appeal is rejected. (Pronounced in the Court)

  ---

• 2004 (8) TMI 610 - CESTAT, NEW DELHI
  

  Demand - Valuation

  
  
  ... ...
  ... ... ..... the sale price of SAIL, the appellants under valued the goods and paid less duty than was due. It is apparent that there could be no short levy in respect of the goods cleared by the appellants. The duty demands made against the appellants are clearly the result of a gross misunderstanding of the principles of valuation laid down by the Apex Court in the Ujagar Prints case. These demands are not sustainable rdquo . 3.The only ground urged in the appeal before us is that the Department has filed a Reference Application before the Hon rsquo ble Punjab and Haryana High Court against the Tribunal rsquo s order. Since the issue involved admittedly stands covered by the earlier decision in the case of M/s. Surindra Steel Rolling Mills (supra) which has not been shown to have been either stayed or overruled, we hold that there is no ground to interfere with the impugned order and accordingly uphold the same and reject the appeal. (Operative part announced in open court on 13-8-2004)

  ---

• 2004 (8) TMI 608 - CESTAT, KOLKATA
  
  ... ...
  ... ... ..... of Borax, learned Advocate submits that the case may be remanded to the original adjudicating authority to verify the use of Borax in the material goods. 3.We have also heard Shri T.K. Kar, learned S.D.R. for the Revenue, who reiterates the findings in the Order-in-Appeal. We find force in the contention of the learned Advocate that additional point can be raised at the time of appeal, and the Commissioner (Appeals) was not correct to hold that the additional point cannot be raised at the appellate stage in view of Rule 5 of the Central Excise (Appeals) Rules, 2001, as held by the Hon rsquo ble Supreme Court in the judgement referred to above. In view of the above, after setting aside the impugned Order, we remand the matter back to the original adjudicating authority to verify the fact regarding use of Borax and to decide the classification of the product after observing the principles of natural justice. The appeal is thus allowed by way of remand. (Pronounced on 13-8-2004)

  ---

• 2004 (8) TMI 607 - CESTAT, KOLKATA
  

  Cenvat/Modvat - Duty paying documents

  
  
  ... ...
  ... ... ..... of the inputs in the factory before them. The explanation given by the ld. Consultant about the original G.P. is not tenable. Had there been any economic blockade and agitation than the goods would not had ever reached the factory. If the goods were reached, then definitely the documents itself had accompanied with the goods. The contention of the ld. Consultant that the Check Post stamp was wrongly affixed on the invoices is also not tenable. No Check Post In-charge will stamp the papers without checking the contents of the goods in the lorry and the documents. In the present case, the appellant fails to prove that the goods were received in the factory. Under these circumstances, they are not entitled, to the benefit of Modvat credit. The orders of the subordinate authorities are in consonance with the law and Rules. Accordingly, it does not require any interference. Appeal deserves to be dismissed. 9. emsp Consequently, I dismiss both the appeals. (Pronounced on 12-8-2004)

  ---

• 2004 (8) TMI 606 - CESTAT, NEW DELHI
  

  Appellate Tribunal - Limitation - Stay/Dispensation of pre-deposit - Demand and penalty

  
  
  ... ...
  ... ... ..... the show cause notice was filed by them inspite of reminders issued by the Commissioner. We also observe from the perusal of the impugned order that JDGFT has cancelled the advance licence issued to the Applicants. We agree with the learned Senior Departmental Representative that the documents now produced have to be first verified before these could be taken into consideration. Accordingly, the Applicants have not made out a strong prima facie case for waiver of entire amount of duty. We therefore, direct the Applicants to deposit a sum of Rs. 22 lakhs within six weeks from today and on complying with this direction, there shall be waiver of remaining amount of duty and penalty on the Applicants and the recovery of the same will remain stayed during the pendency of the appeals. Failing to comply with the direction will automatically result in dismissal of Appeal without further notice. The matter will come up for reporting compliance on 20-10-2004. (Pronounced in the Court)

  ---

• 2004 (8) TMI 605 - CESTAT, NEW DELHI
  

  Valuation - Penalty and redemption fine - Quantum of

  
  
  ... ...
  ... ... ..... er dated 25-7-2003 in which they had agreed with the finding of the Panel and had accepted the valuation arrived at the time of re-examination cannot be treated as an involuntary letter. There is nothing in the letter to suggest that it was taken from them under duress or coercion. In view of these circumstances, it cannot also be claimed by them that the method of determining the value of the imported goods has not been disclosed to them. We, therefore, uphold the enhancement of the value and confiscation ordered by the Commissioner. We, however, agree with the learned Advocate that both the penalty and the redemption fine imposed on them are on the higher side. Interest of justice will be met if the appellants are directed to pay the redemption fine of Rs. 25 lakhs instead of Rs. 90 lakhs and penalty of Rs. 5 lakhs. We accordingly, reduce the redemption fine to Rs. twenty-five lakhs and penalty to Rs. 5 lakhs. The appeal is thus partially allowed. (Pronounced in the Court).

  ---

• 2004 (8) TMI 604 - COMMISSIONER OF CENTRAL EXCISE (APPEALS), CHENNAI
  

  Provisional assessment

  
  
  ... ...
  ... ... ..... visional assessment final assessment order has been passed. Now the final assessment orders have been issued pursuant to the above provisional assessment orders. Having conceded the fact that the order of provisional assessment was passed on 24-7-1996 it is but clear that interest clause relating to provisional assessment would not apply to these cases since they would apply only for such provisional assessments ordered on or after 1-7-2001 irrespective of the date of finalisation of the provisional assessment. Since Rule 6(4) of Service Tax Rules, 1994 has given way to new Central Excise Rules, 2001 for ordering provisional assessment and finalizing the same, the instructions issued by the CBEC with regard to provisional assessment under new Central Excise Rules would mutatis mutandis apply for such assessments made under Rule 6(4) of the Service Tax Rules, 1994. 13. emsp In view of the above discussion, I set aside the impugned orders and allow the Appeals. Appeals allowed.

  ---

• 2004 (8) TMI 603 - COMMISSIONER OF CENTRAL EXCISE (APPEALS), CHENNAI
  

  Advertising agency - Valuation - Demand - Limitation - Suppression

  
  
  ... ...
  ... ... ..... tivity as early as in January 1998, the demand invoking the extended period of limitation cannot be issued in July 2003, as the entire period of demand is subsequent to the disclosure of the nature of activity to the department. 26. emsp Hence the entire proceedings are clearly hit by limitation as the proceedings have been initiated beyond the normal period of limitation without any justification as the nature of the activity had already been taken note of the department in January/February 1998, and the entire period of demand being only thereafter namely since April 1998. 27. emsp Once the proceedings are without jurisdiction, the penal action would also not survive both on merits and also on account of limitation. 28. emsp I conclude by holding that the activity of the Appellants would correctly come only under the purview of business auxiliary service and not as an advertising agency. Hence, the impugned orders are set aside and appeals allowed. 29. emsp Appeals allowed.

  ---

• 2004 (8) TMI 602 - CESTAT, BANGALORE
  

  Penalty - Quantum of

  
  
  ... ...
  ... ... ..... of Shri Ashraf, the Commissioner has given a categorical finding about the concealment of the foreign currencies against the provisions of Foreign Exchange Regulation Act and the same becoming absolutely confiscable. In view of the enormous evidence and inculpatory statements about the involvement of the appellants in attempting to smuggle out the foreign currencies, the seized foreign currencies are absolutely confiscable and that they are liable for penalties. We find that the appellants are involved in the case and the value of the foreign currencies is more than Rs. 45.11 lakhs and the penalty imposed is only Rs. 1 lakh on each of them, which is very minimal and cannot be faulted. The only plea in their submission is for reduction of penalty, which on our consideration find that the penalty imposed being very minimal compared to the value of the seized currencies, therefore, it does not call for any reduction. There is no merit in these appeals and the same are rejected.

  ---

• 2004 (8) TMI 601 - CESTAT, NEW DELHI
  

  Valuation - Transaction value - Rejection of

  
  
  ... ...
  ... ... ..... 85000 pound. The respondent made import of second hand goods and the Chartered Engineer certificate is produced by the appellant also mentioned the year of manufacture as 1984. 6. emsp The only contention of the Revenue is that the value of the goods imported by the respondent is 147650 pound. However, Revenue had not produced any evidence in support of their claim. The Commissioner (Appeals) taking into consideration the value mentioned in the In-Bond Register granted depreciation as per the provision of Import Export Policy. 7. emsp As the Revenue failed to produce any evidence in support of their claim in respect of the value of the goods, the value declared by the respondent in the B.E. and in the In-Bond Register which is supported by the invoice has to be taken as the transaction value. Therefore, the depreciation on the value declared by the respondent is rightly granted by the Commissioner (Appeals). We find no infirmity in the impugned order. The appeal is dismissed.

  ---

• 2004 (8) TMI 600 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
  

  Settlement of case - Immunity from penalty, interest and prosecution

  
  
  ... ...
  ... ... ..... riate authority for refund of balance amount of Rs. 5,91,152/-(from out of the original deposit amount of Rs. 44,26,180/-), who shall consider the same as per law, on receipt of the said application. (ii) Immunity is granted in terms of Section 127H(1) of the Customs Act, 1962 to M/s. Kehelan Stud Livestock Agricultural Farm, Bangalore from confiscation and fine in lieu thereof, interest, penalty and from prosecution under the provisions of the Customs Act, 1962. Immunity is also granted under the same provision to the other four co-applicants, namely, Dr. Hasneyn Mirza, Mr. Shameem F. Rattonsey, Ms. Syeda Mirza, and Mr. Zeyn Mirza, all partners of M/s. Kehelan Stud, Livestock and Agricultural Farm, Bangalore North - 560 054, from penalty and prosecution under the provisions of the Customs Act, 1962. 6. emsp Attention of the applicants is specifically drawn to the provisions of sub Section (3) of Section 127H of the Customs Act, 1962 in so far as the immunities are concerned.

  ---

• 2004 (8) TMI 599 - CESTAT, NEW DELHI
  

  Refund claim - Unjust enrichment

  
  
  ... ...
  ... ... ..... o not find merit in the contention of the respondent that this Court should not interfere under Article 136 of the Constitution in view of the concurrent finding of fact rdquo . 7. emsp In the present case the contentions are that the above decision of the Hon rsquo ble Supreme Court is not applicable to the facts of the case on the ground that the Supreme Court was dealing a case where the invoices in question are not of manufacturers. We find that as the Supreme Court was dealing the issue regarding unjust enrichment and the law laid down by the Supreme Court is in respect of the specific plea that in case price remains same, the burden of payment of duty has not been passed on to the buyer and this issue is decided in favour of the Revenue by the Supreme Court, therefore, we find no merit in this argument of the applicant. As the issue raised by the appellant in specific answer by the Supreme Court, therefore, we find no merit in these applications, the same are dismissed.

  ---

• 2004 (8) TMI 598 - CESTAT, NEW DELHI
  

  Refund claim - Unjust enrichment

  
  
  ... ...
  ... ... ..... nts in claiming the refund of the duty. 5. emsp When the appellants had already passed on the incidence of duty to the buyers of the goods, they had no right to claim back the refund from the Department, and the principle of unjust enrichment has been rightly invoked by the authorities below. The ratio of the law laid down by the Apex Court in the case of Mafatlal Industries Ltd. supra, rather goes against the appellants instead of helping them. In that case, it has been ruled that nobody can be allowed to become rich by collecting duty from both the hands. Every assessee, who is claiming the refund of duty, has to satisfy that he had not passed on the incidence of duty to the ultimate consumer. The appellants, therefore, having failed to discharge this burden of proof, are not entitled to the refund of the amount. 6. emsp In view of the discussion made above, I do not find any illegality in the impugned order and the same is upheld. The appeal of the appellants is dismissed.

  ---

• 2004 (8) TMI 597 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
  

  Settlement - Grant of

  
  
  ... ...
  ... ... ..... y liability, and the balance of the deposit amount shall be refunded to the applicant as per law. (ii) Immunity is granted from fine in lieu of confiscation, penalty, interest and prosecution, in terms of the provision of the Customs Act, 1962. (iii) In view of the immunities granted to the main applicant company, the Bench finds no reason to deny similar immunities to the co-applicants. Accordingly, immunity from penalty and prosecution is granted to the co-applicants also on par with the applicant company. 8. emsp The above immunities are granted in terms of Section 127H(1) of the Customs Act, 1962. They are liable to be withdrawn if at any point of time it comes to the notice of the Settlement Commission that in obtaining the above immunities any fraudulent means had been adopted, or any particulars material for settlement had been withheld or any false evidence had been given. Attention of the applicant is drawn to sub-section (3) of Section 127H of the Customs Act, 1962.

  ---

• 2004 (8) TMI 596 - CESTAT, BANGALORE
  

  Appeal - Dismissal of

  
  
  ... ...
  ... ... ..... enugopal Achar, who is said to be one of the Directors, but he has not taken the notice at his residence on the plea that the has been removed as Director by the Board, as per the letter issued by Registrar of Companies. 3. emsp On our careful consideration, we notice that the appeal cannot be heard unless notice is served on the respondents, in terms of the Apex Court judgment rendered in the case of CCE, Hyderabad v. Electrolytic Foils Ltd. - 1997 (91) E.L.T. 543 (S.C.). Therefore, the appeal is dismissed for non-service of notice of hearing on the respondents by the Revenue.

  ---

• 2004 (8) TMI 595 - CESTAT, KOLKATA
  
  ... ...
  ... ... ..... m the above discussion that the Commissioner has rightly arrived at the decision for determination of duty on account of Octroi. So far the interest is concerned, provisions of Section 11AB provides that in such cases where the duty becomes payable consequent to issue of an order and such amount of duty is voluntarily paid in full without reserving any right to appeal against such payment at any subsequent stage within 45 days from the date of issue of such order or direction as the case may be, no interest shall be payable. In present case also the duty demand has been paid prior to determination of the duty and consequently interest is not leviable. In present case the duty has been paid prior to determination of the duty liability. Under these circumstances, the Commissioner has imposed only penalty of Rs. 10,000.00. We don rsquo t find anything wrong in the order and the order does not require any interference. The appeal has no merit. Consequently, we dismiss the appeal.

  ---

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