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Case Laws
Showing 181 to 200 of 675 Records
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2000 (11) TMI 888 - CEGAT, KOLKATA
Demand - Modvat - Penalty ... ... ... ... ..... 209A, it is seen that though the original adjudicating authority gave an adverse finding against Shri Pradip Kumar Bhanot, but no penalty was imposed by him upon the said partner. No appeal was filed by the Revenue against the above portion of the Order passed by the original adjudicating authority. As such, the Commissioner (Appeals) was not justified in issuing the above direction to the Joint Commissioner while remanding the case on an appeal by the main appellant firm, M/s. V.P. Packaging. I accordingly set aside the said portion of the impugned Order of the Commissioner (Appeals). 13. emsp As a result, the amount of duty of Rs. 1,06,586.38 having been confirmed against the appellants, Modvat credit of Rs. 40,000.00 already deposited by the appellants, is to be adjusted against the said amount. Penalty of Rs. 20,000.00 (Rupees twenty thousand) only is imposed upon the appellants. 14. emsp In view of the above Order, the Stay Petition as well as the appeal are disposed of.
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2000 (11) TMI 885 - CEGAT, CHENNAI
... ...
... ... ..... se of Philips India Ltd. - 1997 (91) E.L.T. 540 (S.C.) wherein the Supreme Court has held that lsquo advertisement which the dealer was required to make at their own cost benefited in equal degree the appellant and the dealer and that for this reason, the cost of such advertisement was borne half and half by the appellant and the dealer. Making a deduction out of the trade discount on this account was, therefore, uncalled for rsquo (b) We find that this position of law as laid down by the Supreme Court applies to the facts of this case, especially when the commissions are containing advertisement costs and no deductions have been claimed on that account, there was no case or cause to load the value as proposed in the show cause notice. 5. emsp In view of our findings, since we find no merits in loading of advertisement costs as proposed, we cannot uphold the order of Commissioner (Appeals). Therefore, same is set aside and appeal allowed with consequential relief, as per law.
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2000 (11) TMI 882 - CEGAT, MUMBAI
Appeal - Limitation - Delay of 746 days in filing ... ... ... ... ..... pinion that the ld. Commissioner had not dealt with a particular aspect in dealing with that particular appeal then they were entitled to go back to him with the request that the leftover portion could be covered by him in a separate order. If on that ground if the assessees did not file an appeal at that time, there is no purpose of filing of an appeal now. We similarly find it difficult to accept the claim that where one issue was settled on principle, the resultant or separate appeals in which following the earlier decision some amount had been quantified and confirmed against the assessee would abate even when no appeal had been filed in their regard. If this were so then also there is no need for filing of the present appeal. 11. emsp On careful consideration of the submission, we are unable to find force in the reasons given for condoning the delay in filing of this appeal. The application is dismissed. Consequently the stay petition and the appeal also stand dismissed.
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2000 (11) TMI 880 - CEGAT, KOLKATA
Demand - Limitation ... ... ... ... ..... me is in the affirmative. It is not understood as to when the appellants have given the full description of the goods and has claimed the classification under Chapter 84, how the suppression and the charge of misleading the Department can be attributed to them. There is nothing on record to show that the approving officer at any point of time, sought any information from the appellants before, approving the classification, which the appellants refused to give. It is now well-settled that before approving the classification of any product, the proper officer is required to make necessary enquiries and verifications. If the Revenue was in doubt, it was open to the Assistant Commissioner to ask for the, relevant information at the time of approval. The demands have been raised in August, 1996 for the period of November, 1993 to February, 1994 and is thus clearly barred by limitation. As such, we set aside the impugned order and allow the appeal on the point of limitation itself.
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2000 (11) TMI 876 - CEGAT, KOLKATA
Re-export - Penalty ... ... ... ... ..... was not even a Licenced Customs House Agent. Shri S. Mehta, learned Advocate referred to a decision of the Tribunal in the case of Mahavir Prasad reported in 2000 (126) E.L.T. 803 (T) 2000 (37) RLT 297 (CEGAT) which is to the effect that the provisions of Section 112(b) of the Customs Act, 1962 are not attracted in a case where the noticee is yet to take the delivery of the offending goods. He submitted that the appellant was yet to clear the consignment on behalf of one Shri Jaspal Singh of Delhi who had agreed to take the delivery of the goods, but had subsequently backed out. In view of the foregoing, we hold that since there is no affirmative evidence against the appellants, imposition of personal penalties upon them on the basis of uncorroborative statements of the co-accused is neither justified nor warranted. Accordingly, we set aside the penalties imposed upon them. The impugned Order of the Commissioner is modified to the extent indicated in the preceding paragraph.
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2000 (11) TMI 875 - CEGAT, KOLKATA
Demand - Clandestine removal ... ... ... ... ..... venue. In view of this, we accept the appellants rsquo contention that the normal life of the metal container is six rotations and set aside the demand of duty of Rs. 4,07,303.00. We also note that in the past the appellants rsquo jurisdictional central excise authorities have been approving the price lists after considering the life of the tin containers on an average as six trips. In these circumstances there was no justification for confirmation of demand against the appellants on this ground by invoking the longer period of limitation. As such the demand of duty raised on this account is also liable to be set aside on the point of limitation. 5. emsp As regards penalty of Rs. 75,000/-, we reduce the same to Rs. 30,000/- inasmuch as major portion of the demand has been set aside by us. 6. emsp As a result - (i) Demand of Rs. 1,93,245.38 is confirmed against the appellant. (ii) Demand of Rs. 4,07,303.00 is set aside. (iii) Penalty of Rs. 75,000/- is reduced to Rs. 30,000/-.
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2000 (11) TMI 870 - CEGAT, MUMBAI
Confiscation and Penalty ... ... ... ... ..... fin. Pvt. Ltd. v CC - 2000 (118) E.L.T. 360 (T) 1999 (35) RLT 3. It also took note of the two judgments of the Calcutta High Court in CC v Lexus Exports - 1994 (69) E.L.T. 228 and in CC v Pankaj V. Seth - 1997 (90) E.L.T. 31. After considering these decisions, and other judgments of the Courts and the decisions of the Tribunal, the Larger Bench has concluded that the decision in MVT International v CC is the correct exposition of law and that the decision in Galani Infin. Pvt. Ltd. not good law. Applying the ratio of this decision, it will follow that there was no contravention of Section 18(1) of the Foreign Exchange Regulation Act, 1973 by virtue of the appellant having declared a value for the goods which the department was unable to accept. The goods therefore would not be liable to confiscation or the appellant liable to penalty. 7. emsp We, therefore, allow the appeal to this extent and set aside the order of confiscation and imposition of penalty. Consequential relief.
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2000 (11) TMI 868 - CEGAT, CHENNAI
Reference to High Court ... ... ... ... ..... c. He has noticed that Revenue rsquo s case was that modvat credit of capital goods cannot be extended on the basis of original documents on the plea that duplicate copy was lost. This was negatived by the Commissioner in the light of Tribunal ruling rendered in L and T reported in 1994 (72) E.L.T. 948 and that of Bombay High Court rendered in Bombay Goods Transport Association reported in 1995 (77) E.L.T. 521. The Commissioner (Appeals) has also taken into consideration various circumstances and other documents to show that the capital goods had been installed in the factory and there was due compliance of various provisions of modvat rules and the violations were all technical in nature. The Tribunal confirmed this point also by noting several judgments in its final order. Therefore, the issue being no longer res integra, and the questions framed by Revenue is not a question of law, therefore, there is no merit in this reference application and same is accordingly rejected.
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2000 (11) TMI 866 - CEGAT, CHENNAI
Jute manufactures ... ... ... ... ..... nnot find any infirmity in the reliance of the Chemical Examiner rsquo s report as made by the lower authorities since the report does recommend that rot-proofing effect may be caused on the jute fabrics in this case. (c) emsp The grounds in appeal are admitting that the products are used for water proofing the roof or foundations and are therefore water proofing jute products, but it does not give any reason or material evidence as to what is the understanding of lsquo rot proof jute fabrics rsquo in the person rsquo s dealing with the product and how this product impugned before us is not understood as lsquo rot-proofing jute fabrics rsquo . Therefore, we find that no grounds to have been made out in the appeal before us to find any infirmity in the order of the lower authorities who have unanimously held to be lsquo rot proof rsquo . 5. emsp In view of our findings herein above, we reject this appeal being made on presumptions and insufficient grounds. Ordered accordingly.
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2000 (11) TMI 864 - CEGAT, MUMBAI
Refund arising out of appellate order ... ... ... ... ..... plemented. 2. emsp Before us there is no order of stay from any Superior Court directing stay of the order of this Tribunal made in Application No. E/Misc. (EH) 213/2000 in E/CO-34/99 in Appeal No. E/3318/99-Mum vide Order No. C-II/1748-50/WZB/2000, dated 13-6-2000, we have directed the Respondent Commissioner the appellant in the said proceedings to grant the refund to the assessees. It may be true that the Department is contemplating to file the writ petition but unless the Department is able to obtain Order of Stay from a Superior Court staying the order of the Tribunal mentioned above, the Department is bound to comply with the directions made by the Tribunal in the said order. We therefore, direct the Commissioner to comply with the order immediately not later than third week of January, 2001. Until meanwhile if no stay is obtained but in case stay is obtained the order passed by the Superior Court will hold the field. The matter will come up for compliance on 25-1-2001.
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2000 (11) TMI 861 - CEGAT, MUMBAI
Reference to High Court ... ... ... ... ..... n that it proposes revolves around the fact the decision of the Delhi Bench and its suggestion that, the matter should have been referred to a larger bench. The question before the bench at Delhi, and the one before this bench, were entirely different. The question before the bench at Delhi was whether a rectangular casserole could be described as a bowl, which was one of the five articles exempted under Entry 2 of the Table to notification. The Tribunal concluded that the rectangular casserole was not such a bowl. 5. emsp That however, was not the question before the Tribunal at Mumbai. The first paragraph of this order has explained what that question was. Therefore, even if the decision of the Delhi bench had been cited before this bench, had been cited before the Tribunal, it would have concluded that it have no relevance to factors before it for consideration. The question proposed therefore does not arise out of the Tribunal rsquo s order. 6. emsp Application dismissed.
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2000 (11) TMI 860 - CEGAT, KOLKATA
Demand - Limitation ... ... ... ... ..... value of the said 38 pcs. of UPSS has already been included in the total value of clearance from the appellants rsquo factory while raising the demand of duty vide the impugned show cause notice. As he is not disputing the liability of the appellants to pay duty on 38 pcs. of UPSS, the value of which has already been included in the progressive total value of the clearance from the appellant rsquo s factory, no orders are required to be passed on the same. 8. emsp In view of the foregoing, we hold that duty liability of the appellants is to be requantified after extending the benefit of first clearance of Rs. 30 lac at nil rate of duty in terms of the notifications. As regards the personal penalty of Rs. 30,000/- keeping in view the submission made by Shri S.K. Roychowdhury, learned Advocate that with the reduction in duty, quantum of penalty should also be reduced, we reduce the same to Rs. 20,000/- (rupees twenty thousand only). The appeal is disposed of in the above terms.
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2000 (11) TMI 859 - CEGAT, CHENNAI
Demand - Re-classification ... ... ... ... ..... bay) and other decisions. Therefore we find that demand under Rule 9(2) can only be made when the manufacturer clandestinely removes the goods from the place or the premises specified in Rule 9(1) without the use of a Gate Pass in the proper format etc. Mere clearance of goods without payment of duty or under an incorrect classification but which was approved under Rule 173B as in this case cannot and does not call for demand under Rule 9(2) as is being made in this case. Therefore, without going into the other aspects of the appeal on merits which the Learned Advocate for the appellants has not pressed before us and also the question of retrospective demand for the period of 6 months which has also been foregone by the Learned Advocate, we would find that demand in this case has not been determined as provided under provisions of Section 11A and therefore the demand cannot be sustained. 3. emsp In view of our findings hereinabove, we set aside the order and allow the appeal.
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2000 (11) TMI 854 - CEGAT, KOLKATA
... ...
... ... ..... ent to substantiate the charge of smuggling. We are conscious of the legal position that it is not with mathematical precision that the department is required to prove its case, but there should be at least some evidence on record to support the allegations and findings of the Revenue. We do not find any in the present case. Accordingly, we hold that the confiscation of the betel nuts in question was not justified and set aside the same with consequential relief to the claimant owners. rdquo 6. emsp As such, following the ratio of the earlier Order, we hold that the confiscation of the Betel Nuts in question was not justified. The same be returned to either the owner of the same who claimed the same or to the person from whom the same were seized. Similarly, there is no justification for confiscation of the trucks and the same be released. Personal penalties imposed on various persons are set aside. In nutshell, all the appeals are allowed by setting aside the impugned Order.
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2000 (11) TMI 853 - CEGAT, MUMBAI
Import of cars - Countervailing duty - Refund - Unjust enrichment ... ... ... ... ..... e amount of concessional duty and, if he has paid more, will be entitled to ask for a refund. rdquo The crux of the problem has been answered by the observation of the Supreme Court in the said case in favour of the respondent. 6. emsp No doubt Smt. Reena Arya emphasizes the fact about unjust enrichment. The doctrine of unjust enrichment in respect of captive consumption has been upheld by the Supreme Court in Solar Pesticides - 2000 (116) E.L.T. 401 but that judgment in our view will not be applicable to the instant case because the goods have not been sold to any person. The goods are used by the importer himself as a taxi. The goods are not captively consumed and sold. We are therefore of the view under the peculiar circumstances available in the facts of the case, the dictum laid down in the Solar Pesticides case cannot be made applicable to this case. In view of the above, we dismiss the appeals of the department and uphold the order passed by the Commissioner (Appeals).
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2000 (11) TMI 850 - CEGAT, CHENNAI
Appeal - Limitation - Delay in filing ... ... ... ... ..... given have been found to be not satisfactory. The appellants have filed the application in a cursory manner. Therefore, the Commissioner has found the reasons to be flimsy and not acceptable and had applied the ratio of the Hon rsquo ble Apex Court judgment in the case of Shri G. Ramagowda and others v. Special Land Acquisition Officer (supra), which is totally applicable to the facts of the case, while the citation shown by the learned advocate in the case of Jaya Engineering Works Ltd. is distinguishable as the merits does not appear to be covered in this matter. Further, the said merits had also not been argued before the Commissioner and the Commissioner has not given any findings on merits. 5. emsp In that view of the matter, there is no reason to condone the delay of appeal filed before the Commissioner. Therefore, the order of dismissal of the Commissioner on delay is justified and the same is upheld, as a consequence, the stay application and the appeal are dismissed.
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2000 (11) TMI 847 - CEGAT, KOLKATA
... ...
... ... ..... lty upon the appellant under the provision of Rule 209A has simply observed that the appellants are found to have committed themselves liable for penalty inasmuch as they dealt with the goods in question, knowing fully well that such purchase, storage and sale of subject goods were liable to confiscation under Central Excise Rules. However, it has not been clarified by the adjudicating authority as to what are the circumstances attributing knowledge on the part of the appellant as regards the liability of the goods to confiscation. It is well settled that for imposing personal penalty under Rule 209A, it is necessary to show that the person was involved with the goods, with a knowledge of the same having committed the offence. Inasmuch as there is nothing on record to impart such a knowledge on the part of the appellant, I find no justification for imposition of penalty under Rule 209A. Appeal is allowed and the impugned order imposing penalty upon the appellant is set aside.
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2000 (11) TMI 846 - CEGAT, KOLKATA
... ...
... ... ..... ional interest in the landed cost of the raw materials. 7. emsp We further agree with the submission of the ld. Consultant that by confirming the higher amount of duty than what was proposed in the show cause notice, the adjudicating authority has travelled beyond the show cause notice. There is nothing on record that before taking up the remand proceedings the notice in question was amended by way of issuance of corrigendum or any fresh notice was issued to the appellant. As such we hold that the confirmation of demand of duty to the extent of Rs. 7,07,212.95 is not justified. With these observations we set aside the impugned orders and remand the matter to the Asstt. Commissioner for quantifying the demand of duty against the appellants. The appellants are reported to have deposited an amount of Rs. 11.49 lakhs on account of differential duty which may be adjusted towards the confirmed quantum of duty against the appellants by the Asstt. Commissioner, in terms of our order.
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2000 (11) TMI 845 - CEGAT, MUMBAI
Demand - Exemption - Value of clearances ... ... ... ... ..... of clearance. 6. emsp Shri Patwari showed us the annexures hereby the value of clearance of M/s. Samarath Engineering Works and M/s. Mulla Fabricators were counted together. In the absence of any specific allegation, in our opinion, the existence of some calculation does not substitute for the charge. The ld. Commissioner in the impugned order has attempted to establish that Shri Mulla was managing the bank accounts and also the common purchase of raw materials, labour, wages etc. of all the three units. In doing so he has gone beyond the show cause notice which did not allege any clubbing. 7. emsp On examination of the statement of Shri Mulla, the show cause notice and the impugned order, we find that the demands raised therein are without any substantiation and therefore, do not survive. The orders of confiscation of M.S. covers do not survive. For the same reason, the orders of imposition of penalty also do not survive. The appeals are allowed with consequential benefits.
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2000 (11) TMI 843 - CEGAT, KOLKATA
Smuggling - Burden of proof ... ... ... ... ..... inasmuch as the Cellular Phones are allowed import under O.G.L. as per the Exim Policy, 1997-2002. 4. emsp Shri R.K. Roy, ld. JDR appearing for the Revenue, reiterates the reasoning contained in the order impugned. 5. emsp I have heard both sides. It is observed that this Tribunal has been consistently taking a view that when the goods are neither prohibited nor notified ones, absolute confiscation is bad in law. Following the decision of this Tribunal in all the earlier cases including those cited by the ld. advocate, I am of the view that confiscation of the impugned goods, and absolute confiscation at that, is not legal and proper inasmuch as the Department has not brought on record any positive evidence to establish or prove the smuggled nature or contraband character of the impugned goods. I, therefore, set aside the impugned order with consequential relief, if any, to the appellant. 6. emsp The appeal is thus allowed with consequential relief, if any, to the appellant.
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