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Showing 181 to 200 of 520 Records

• 2002 (11) TMI 612 - CEGAT, MUMBAI
  

  Draw twisted yarn not leviable

  
  
  ... ...
  ... ... ..... ecifically the tariff value for Polyester Filament Yarn textured or twisted. Prior to 16-3-95 the tariff value was fixed only for textured and non-textured polyester filament yarn. On the above view the Commissioner (Appeals) disagreed with the Assistant Commissioner and held that such yarn was not leviable to duty prior to 16-3-95. 3. emsp Admittedly the respondent herein gets duty paid yarn and carries out only the process of twisting. The above activity was not treated as ldquo manufacture rdquo before 16-3-95. Under these circumstances, we find no reason to take a different view from that taken by the Commissioner (Appeals). 4. emsp We, therefore, find no merit in this appeal. The appeal stands dismissed.

  ---

• 2002 (11) TMI 611 - CEGAT, KOLKATA
  

  Appeal - Limitation - Delay in filing appeal - Condonation of

  
  
  ... ...
  ... ... ..... he was directed by the Superintendent to do so is on the basis of reasonable belief being entertained by them at the relevant time and there exists sufficient grounds for condonation of the same. Accordingly, I condone the delay and take up the stay petition as well as the appeal itself for final disposal. 4. emsp As already observed, the impugned order of the Commissioner has not been passed on merits but the appeal has been dismissed without first passing order on the stay petition filed by the appellants. Accordingly, I set aside the impugned order and remand the matter to the Commissioner with direction to first pass the order on the stay petition filed by the appellants after taking into consideration the merits as well as financial position of the appellants. Appeal is thus allowed by way of remand. Stay Petition also gets disposed of. 5. emsp Needless to say that the appellants would be given an opportunity of personal hearing before passing order on the stay petition.

  ---

• 2002 (11) TMI 606 - CEGAT, NEW DELHI
  

  Natural justice - Adjournment request

  
  
  ... ...
  ... ... ..... issioner. It is pertinent to note that the Advocate had specifically requested the Commissioner (in his telegram dated 11-3-02) to avoid 21st and 22nd March, 2002 while fixing the date of hearing. The Commissioner, however, wanted to hear the matter right on 22-3-02 itself. It is, further, curious to note that there was no attempt on the part of the adjudicating authority for granting another opportunity of personal hearing to the appellants or their advocate during the long interregnum of four months between the last date of hearing and the date of the order. Gross violation of the principles of natural justice is thus manifest in this case. I set aside the impugned order and direct the Commissioner to pass fresh speaking order after affording a reasonable opportunity of being heard, to the appellants. It is made clear that the order to be issued to the parties and/or their Advocate shall be duly signed by the Commissioner. 4. emsp The appeals stand allowed by way of remand.

  ---

• 2002 (11) TMI 605 - CEGAT, MUMBAI
  

  Natural justice - Non-speaking order - Remand

  
  
  ... ...
  ... ... ..... nder Heading 2708.19. Shri Jagesha, learned Consultant defends the order, passed by the Commissioner (Appeals) in favour of the respondent. He has also produce (certificate) from the suppliers in Japan and Spain. 2. emsp After hearing rival submissions and the case records, we find that the Commissioner (Appeal) has not passed a speaking order after taking into account the test reports. She also seems to have taken into account specifications from the manufacturers in South Korea whereas the imports are of Japanese and Spanish origin. She also states that the I.I.T. report confirms the product to be a blended product beyond any shadow of doubt whereas the said report is not categorical. We are, therefore, convinced that the issue requires re-examination and we, therefore, remand the case back to the Commissioner (Appeal) for deciding a fresh and passing a speaking order after taking into account the rival submissions. The department rsquo s appeal is allowed by way of remand.

  ---

• 2002 (11) TMI 604 - CEGAT, CHENNAI
  

  Anti-dumping duty - Paper - Photographic papers - Domestic industry -

  
  
  ... ...
  ... ... ..... uding an coordinate Bench. 4. emsp We have carefully considered the submissions made by both the sides, we notice that the Tribunal (Anti-dumping Bench) in the case M/s. Agfa Gevaert A.G. v. Designated Authority (supra) has gone into great detail on the validity of imposition of Anti-dumping Duty on the imported goods. After detailed consideration, the Tribunal has held that the Designated authority has not established that the domestic industry has been injured on account of import of goods in question and hence has quashed the final notification itself. The Tribunal rsquo s order has not been stayed by the Hon rsquo ble High Court of Delhi. Therefore, the Commissioner (Appeals) order following the ratio of the Tribunal rsquo s order is a correct and legal order. Once the notification has been quashed, there is no question of the same being still in existence as contented in the appeal memo. There is no merit in the appeal and hence the same is rejected. Ordered accordingly.

  ---

• 2002 (11) TMI 603 - CEGAT, NEW DELHI
  

  Ash and residues - Zinc ash

  
  
  ... ...
  ... ... ..... parently lost sight of this statutory requirement for classifying any goods as Zinc alloy under SH 7901.20. In the present case, undisputedly, the test report will not be of any use to classify the sample as Zinc alloy. Admittedly, the sole basis for the Commissioner to have classified the goods under SH 7901.20 is the test report. There is no other basis for his decision. 5. emsp The Tariff entry claimed by the assessee is SH 2620.00 the impugned order does not spell out any reason for rejecting this claim. In the case of Metaltone (Gujarat) Pvt. Ltd. cited by ld. Counsel, the goods imported and declared by the party as ldquo Zinc Ash rdquo was held to be classifiable as such under Customs Tariff Heading 26.20. 6. emsp In the light of our findings recorded above, the subject goods are held classifiable under SH 2620.00 of the CET Schedule for the relevant period and the demand of differential duty is vacated. The impugned order stands set aside and the appeal stands allowed.

  ---

• 2002 (11) TMI 602 - CEGAT, NEW DELHI
  

  Rectification of mistake application - Maintainability of

  
  
  ... ...
  ... ... ..... Section 35Q of the Central Excise Act only provides the appearance by the Advocate on behalf of the Appellants/Applicants. As such the ROM application cannot be filed by the Advocate. It has to be filed by the applicants himself. Accordingly the present application is not maintainable and is accordingly dismissed.

  ---

• 2002 (11) TMI 601 - CEGAT, NEW DELHI
  

  Ethyl alcohol

  
  
  ... ...
  ... ... ..... is not suitable for using as fuel in spark ignition engine either by itself or in combination with any other substance. Therefore, it is not classifiable under Heading 2204.00 of Central Excise Tariff. The finding of the Commissioner is based on the report of the Chemical Examiner. 3. emsp The contention of the Revenue is that Ethyl Alcohol is classifiable under Heading 22.04 of Central Excise Tariff. We find that this issue is covered by the decision of the Tribunal in the case of S.M. Shankar Rao Mohite Patil S.S.K. Ltd. v. C.C., Aurangabad, reported in 1998 (102) E.L.T. 115 (Tribunal) and the Tribunal in this case held that Ethyl Alcohol made of 94-95 alcohol and remaining per cent water is not suitable for using as fuel for spark ignition engines and is not excisable under Heading 22.04 of Central Excise Tariff. We find that the issue involved in this appeal is covered by the above mentioned decision of the Tribunal, therefore, the appeal filed by the Revenue is rejected.

  ---

• 2002 (11) TMI 600 - CEGAT, MUMBAI
  

  Customs House Agent Licence - Suspension of

  
  
  ... ...
  ... ... ..... ent who made the photocopy (we assume that the photocopy is a document which should not have been made, since we have not seen it. If direct interest is the criterion, the importer would have done it. As we have said, we remain in a fool rsquo s paradise if we assume that none of the officers of the department in collusion with the importer could have made a photocopy. In our view, there is a total lack of material to take a prima facie view that it was the applicant rsquo s employee who has done and taken the photocopy. We are of the view that there was no basis for invoking the provisions contained in Regulation 21(2) of the Regulations and the suspension of the licence was called for. 6. emsp The appeal is accordingly allowed and the order of suspension is set aside. We however make it clear that the department is at liberty to proceed in the matter and initiate action against the appellant if further investigation provides sufficient material to prove the case against it.

  ---

• 2002 (11) TMI 599 - CEGAT, NEW DELHI
  

  Penalty - Ball bearings of foreign origin found in truck

  
  
  ... ...
  ... ... ..... of the ball bearings and that he had been penalised only by drawing assumptions and presumptions from the statement of Shri Ramesh Prasad and Shri Vinod Kumar who allegedly deposed that the appellant obtained bilty and cash memo respectively from their companies for the rice bran and that the appellant is a poor person who has got no means of livelihood at present. The learned Counsel has also stated that on other co-noticees, named above, very small amount of penalty had been imposed, while penalty imposed on the appellant is on higher side. 4. emsp I have gone through the record. Keeping in view the facts and circumstances of the case, referred to above, in my view the prayer of the learned Counsel deserves to be allowed. The penalty imposed on the appellant is reduced to Rs. 25,000/- (Rupees twenty five thousand only). Except for this modification, the impugned order of the Commissioner is maintained. 5. emsp As a result, the appeal is thus disposed of in the above terms.

  ---

• 2002 (11) TMI 598 - CEGAT, NEW DELHI
  

  Classification

  
  
  ... ...
  ... ... ..... put up in unit containers and ordinarily intended for sale. Requirement for ascertaining the quantity contained in each barrel and carrying out the transaction on that basis take away the benefit which applies to sale in unit containers. Where weighment is required, there is no intent to sell in unit containers. We are, therefore, of the view that the issue remains covered in favour of the appellants by the decision of this Tribunal. We also find that this Tribunal had considered this issue in the appellant rsquo s own case and had held that the appellants rsquo sale in barrels cannot be considered as put up in unit containers and ordinarily intended for sale (Final Order No. 755/98/D dated 24-9-98) There was no change of practice with regard to packing and sale or in regard to law since then. 7. emsp In view of the above, we find that the impugned order is not sustainable. It is, accordingly, set aside and the appeals are allowed with consequential relief to the appellants.

  ---

• 2002 (11) TMI 597 - CEGAT, MUMBAI
  

  Stay - Importer - Duty liability

  
  
  ... ...
  ... ... ..... dhi is altogether different and in fact much stronger. At no stage did he claim to be an importer. Therefore the attempt of the Revenue to foist the title of an importer upon him and to label the payment made by him as ldquo duty rdquo must fail. 25. emsp Section 27 of the Act, names the following ldquo persons rdquo as capable of seeking refund of any duty - (i) paid by him in pursuance of an order in assessment or (ii) borne by him. The first part refers to an importer, and the second refers to a buyer. Shri Gandhi is neither. Therefore the claim of the Revenue that the Commissioner had erred in disregarding the dictates of this Section has no relevance or merit. 26. emsp As regards Shri A.B. Timbadia, the Member (Judicial) in para 11 above has given complete reasoning for dismissal of the stay application. 27. emsp Concurring with the findings of the Member (Judicial) the stay applications against V.K. Gandhi and A.B. Timbadia are dismissed. Sd/- (J.H. Joglekar) Member (T)

  ---

• 2002 (11) TMI 596 - CEGAT, NEW DELHI
  

  Cenvat/Modvat - Invoice, duplicate copy, loss of

  
  
  ... ...
  ... ... ..... Modvat credit of Rs. 47,361/- had been disallowed to the appellants which they took in April, 1995 on the ground that the same had been taken on the invoice other than duplicate copy of invoice without proving the loss of the duplicate copy in transit. In my view, it has been rightly disallowed in view of the ratio laid down by the Larger Bench of the Tribunal in the case of Avis Electronics v. CCE, Delhi, 2000 (117) E.L.T. 571, wherein it has been observed that credit on the original invoice can be taken only on proving the loss of the duplicate copy in transit and not otherwise. The appellants have not been able to prove the loss of the duplicate copy. Therefore, the impugned order of the Commissioner (Appeals) is perfectly valid and is upheld. 4. emsp In view of the discussion made above, the Appeal No. E/1919/02-NB(S) of the appellants is accepted with consequential relief, if any, permissible under the law, while appeal No. E/1920/02-NB(S) of the appellants is dismissed.

  ---

• 2002 (11) TMI 595 - CEGAT, BANGALORE
  

  Appeal beyond show cause notice

  
  
  ... ...
  ... ... ..... (Appeals) set aside that order. Not being satisfied with that order, the Department has filed an appeal before the Tribunal and the Tribunal remanded the matter to the Assistant Commissioner for a fresh decision. In pursuance of the order of the Tribunal, the Assistant Commissioner had decided holding that the Respondents were not eligible for the benefit of Notification No. 71/68. No appeal has been filed against this order. The Department has filed an appeal on the ground that the Respondents were not entitled benefit in terms of Notification No. 377/86. The Commissioner of Central Excise (Appeals) dismissed the appeal filed by the Department rightly so. Since the dispute in respect of Notification No. 377/86 was neither the subject matter of the dispute nor it was mentioned in the notice for denying the benefit therein, any order without show cause notice is bad in law as rightly pointed out by the Respondents. Thus this appeal filed by the Department is hereby dismissed.

  ---

• 2002 (11) TMI 594 - CEGAT, MUMBAI
  

  Penalty - Suppression of fact - Confiscation of land, building, plant, machinery etc.

  
  
  ... ...
  ... ... ..... AC but under Rule 173Q and also in the facts and circumstances of the case we are inclined to reduce the quantum of penalty. 7. emsp As far as the redemption fine is concerned the appellant placing reliance on a decision of this Tribunal in H.T. Bhavnani Chemicals (P) Ltd. v. CCE, Baroda - 1997 (92) E.L.T. 502 (Tribunal) contended that since it is not a habitual offender there could be no confiscation of plant and machinery under Rule 173Q(2). If the facts of the case would bring the assessee under sub-clause (a) of clause 2 of Rule 173Q, it is not necessary that he should be a habitual offender to invoke the provisions regarding the confiscation of land, building, plant, machinery, etc. Petitioner rsquo s case would come under sub-clause (a). Therefore, we sustain imposition of redemption fine. We further direct that the appellant will pay a consolidated amount Rs. 2 lakhs towards penalty and fine. 8. emsp In the light of the above, the appeal stands partly allowed as above.

  ---

• 2002 (11) TMI 593 - CEGAT, NEW DELHI
  

  Redemption fine - Appeal - Non filing of - Consequence

  
  
  ... ...
  ... ... ..... fine. However, it appears that only Dr. S.S. Sharma preferred appeal to the Commissioner (Appeals). Smt. Sashibai Paliwal did not prefer any appeal against the order of the Assistant Commissioner. The Commissioner (Appeals), nonetheless, set aside the order of the Assistant Commissioner in its entirety, directing refund of the amounts of Rs. 37,500/- and Rs.12,500/- to the claimants. As rightly submitted by the learned DR, it was not open to the lower appellate authority to direct any refund to Smt. Sashibai Paliwal as against whom the order-in-original of the Assistant Commissioner had become final and binding. In this view of the matter, I set aside the order of the lower appellate authority to the extent it directed refund of Rs. 12,500/- to Smt. Sashibai Paliwal. In so far as its direction for refund of Rs. 37,500/- to Dr. S.S. Sharma, respondent herein, is concerned, the order of the lower appellate authority is sustained. The appeal of the Revenue stands partly allowed.

  ---

• 2002 (11) TMI 564 - CEGAT, NEW DELHI
  

  Rectification of mistake

  
  
  ... ...
  ... ... ..... s not issued to the applicants. The contention of the revenue in the present application is that opportunity of personal hearing was given to the applicants and there was no necessity to issue the show cause notice while fixing the capacity of furnace under Induction Furnace Annual Capacity Determination Rules, 1997. Therefore, the Tribunal committed error apparent on record while passing the final order. 4. emsp The Tribunal, while passing the final order, came to the conclusion that the impugned order is passed in violation to the principles of natural justice without providing an effective opportunity of hearing. The Tribunal only remanded the issue to the adjudicating authority with certain observations and the contention of the revenue is that the observations are wrong. In this situation the opinion of the revenue cannot be considered to be a mistake apparent on record, which requires rectification in the remand order passed by the Tribunal. The application is rejected.

  ---

• 2002 (11) TMI 563 - COMMISSIONER OF CENTRAL EXCISE (APPEALS), MUMBAI
  

  Manufacture - Dutiability - Marketability

  
  
  ... ...
  ... ... ..... the basis of commercial identity of the article known to the market. In the present case, there is no evidence is adduced to establish that the resultant product on admixture acquires commercial identity in the trade. The facts contained in the show cause notice and the impugned order only reveal that the appellant are admixing different chemicals to pesticides/insecticides to produce slurry for captive use in the unit, but there is no evidence to show that the said resultant slurry has the commercial marketability. Merely because another product has emerged by admixture of different pesticides/insecticides/chemicals does not by itself establish its marketability, which has been held to be an essential requirement for dutiability on any product by the courts of law and the Tribunal. 9. emsp I, therefore, have no alternative but to set aside the impugned order demanding duties on the subject slurry. Also, penalty imposed is not sustainable and is set aside and appeal allowed.

  ---

• 2002 (11) TMI 562 - CEGAT, KOLKATA
  

  Stay/Dispensation of pre-deposit

  
  
  ... ...
  ... ... ..... Modvat credit has been taken have not been used in or in relation to the manufacture of final product. In view of the above facts and circumstances of the case and keeping in view the poor financial condition of the appellants and since the appellants do not have a prima facie case in their favour, we direct them to pre-deposit a sum of Rs. 35 lakhs (Rupees thirty five lakhs only) within a period of eight weeks from today and balance amount of duty and penalty shall be waived and its recovery stayed during the pendency of the appeals. However, it is made clear if the above mentioned amount is not pre-deposited within a period of eight weeks from today, their appeal shall be dismissed under Section 35F of the Central Excise Act, 1944. We also waive pre-deposit of penalty of Rs. 10 lakhs (Rupees ten lakhs only) on Shri Mohsin Khan partner of the appellant firm. We order accordingly. Matter to come up for ascertaining compliance on 27-1-2003, and for final hearing of the appeal.

  ---

• 2002 (11) TMI 560 - CEGAT, MUMBAI
  

  Penalty, confiscation, import manifest

  
  
  ... ...
  ... ... ..... have undertaken on behalf of the master of the vessel on the ground that no individual employee of their Company has been penalised. The Commissioner has taken a lenient view and has not confiscated the goods belonging to the actual importer, but this cannot be taken to mean that the goods are not liable to confiscation under Section 111. I also find that the penalty is imposable in this case on the master of the vessel and consequently on the appellants being his agent under both the clauses (a) and (b) of Section 112. 7. emsp Accordingly, I find no infirmity in the impugned order passed by the learned Commissioner penalising the appellants. However, considering the facts of the case and explanations submitted by the appellants, I reduce the penalty imposed on them from Rs. 1,60,000/- to Rs. 25,000/- and order that pre-deposit of Rs. 25,000/- made by the appellants be adjusted against the same. Subject to the above modification in the penalty amount, the appeal is rejected.

  ---

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