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Showing 181 to 200 of 546 Records
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2006 (12) TMI 400 - CESTAT, MUMBAI
Appeal to Appellate Tribunal - Maintainability of ... ... ... ... ..... application for condonation of delay. Ld. Advocate appearing for the respondents strongly contested filing of fresh appeal against the same order, when the earlier appeal filed by the Revenue stands rejected. 3. emsp I find that the Tribunal in the case of R.K. Agarwal v. Commissioner of Central Excise, Noida 2004 (178) E.L.T. 359 (Tri. - Del.) has held that when the appeals stands rejected by the Tribunal, there is no question of entertaining any application for restoration of such appeals. Similarly, in the case of Air India Ltd. v. Commissioner of Customs, Mumbai 2005 (191) E.L.T. 266 (Tri. - Mumbai) , it was observed that once an order passed by the Tribunal becomes final, having not been appealed against before the higher appellate forum, any fresh appeals against the same order is not entertainable. Inasmuch as, the issue stands decided, I find no reason to entertain the present appeals. Accordingly, COD applications as well as appeals are rejected. (Dictated in Court)
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2006 (12) TMI 399 - CESTAT, MUMBAI
Interest - Delayed refund - Erroneous reversal of Cenvat/Modvat credit ... ... ... ... ..... urt judgment in the case of Indo-Nippon Chemicals Co. Ltd. v. Union of India - 2005 (185) E.L.T. 19 (Guj.) wherein it was held that Modvat credit is constituent of duty and refund of erroneously reversed credit could not be denied on the ground that credit was not duty. 8. emsp We have considered the submissions. We find that this is essentially a case of refund of erroneously reversed credit to which the provisions of Section 11B squarely apply as per Gujarat High Court decision cited supra. Further the refund has to be sanctioned within three months from the date of filing of the refund application and not from the date of ordering refund and since in this case the refund claims were filed in the year 1997 and were sanctioned in February 2003, the respondents are entitled to interest as per provision of Section 11BB. In view of the same, we find no infirmity in the order of the Commissioner (Appeals) and consequently dismiss the revenue rsquo s appeal. (Pronounced in Court)
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2006 (12) TMI 398 - COMMISSIONER OF CENTRAL EXCISE (APPEALS), PUNE-III
Valuation - MRP based valuation ... ... ... ... ..... been alleged in the Show Cause Notice that sticker showing trade name of Coca-Cola were pasted on one or more side of the refrigerator and therefore these were specially packed. This allegation is not correct. Mere pasting of sticker will not amount to packing. There is nothing on records to show that package in which the refrigerator is packed bears any special markings. The allegation therefore remains unsubstantiated. As a result provisions of Rule 34 ibid is not attracted. The department has also argued that ITEL judgment and Commissioner rsquo s order which has relied upon ITEL case have been reviewed and appeal filed. But the fact is that no stay against operation of these orders are on record. Therefore as on date these decisions spell out the correct position of law. 9. emsp In view of the above findings and discussions I hold that department rsquo s contention with regard to retail sale and applicability of Rule 34 are not tenable. The appeal is therefore dismissed.
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2006 (12) TMI 397 - CESTAT, CHENNAI
Stay of Order - Cenvat/Modvat - Capital goods ... ... ... ... ..... able. 3. emsp I have considered the submissions made by both sides. Rule 3(4) of Cenvat Credit Rules, 2002 as it existed at the time of removal of the impugned required that when the capital goods were removed as such the assessee should pay duty on the transaction value. In the instant case, the assessee removed the impugned goods in 2002 without payment of any duty and paid Rs. 35,000/- by debiting the Modvat account after the department had detected the removal and had directed the party to pay the said amount. In the Madura Coats case it was decided that duty was payable only if the capital goods were removed without putting them to use. It appears that the above ratio is correct even if the Board had held a different view in its Circular cited in the Madura Coats case. In view of the above position, prima facie, I do not find any infirmity in the impugned order. Accordingly I dismiss the stay application filed by the Revenue. (Order dictated and pronounced in open Court)
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2006 (12) TMI 396 - CESTAT, NEW DELHI
Confiscation - Excess goods ... ... ... ... ..... in excess in the factory and the same quantity was found short in their duty paid godown, the invoice was in the name of self. The appellant in reply to show-cause notice specifically mentioned that they paid duty on 31-7-2001 on the goods manufactured by them to meet the target fixed by M/s. Pepsi Food Ltd. the franchisers and the goods were separately stored in the factory as there was shortage of place in their duty paid godown. This fact was mentioned by Finance Manager Shri M.K. Jha to the Excise officers. In his statement before the Excise Officer under Section 14 of Central Excise Act, he explained the reasons to keep the duty paid goods in the factory. As the quantity of goods found excess in the factory premises almost the equal to shortage of the duty paid stock. This is also evident from the show cause notice, therefore, I find merit in the contention of the appellant and impugned order is set aside and the appeal is allowed. (Dictated and pronounced in open Court)
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2006 (12) TMI 395 - CESTAT, CHENNAI
Appeal - Limitation ... ... ... ... ..... ed papers to their consultant belatedly. Moreover, the assessee was new to the Service Tax procedures and therefore the assessee requested for a liberal approach in the matter of delay for the ends of justice. The appellant also relies on the judgement of the Apex Court in Collector, Land Acquisition v. Mst. Katiji and Others - 1987 (28) E.L.T. 185 (S.C.). Shri V. Elango has filed an affidavit deposing the same facts as stated in the condonation of delay application, in support of his prayer for condonation of delay. 2.From the facts of the case, I am convinced at the appellant was prevented by sufficient cause from filing the subject appeal in time. The delay in filing the above appeal is condoned. (Dictated and pronounced in open Court)
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2006 (12) TMI 394 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Refund ... ... ... ... ..... ash refund, besides the issue of cross utilization of the duties was pending. 3. emsp It would appear to us that since the entitlement order passed by the Tribunal which is challenged before the High Court has not been stayed, and thereafter refund appears to have been made in cash which is sought to be now covered, it would not be appropriate at this stage to allow the recovery. Therefore, subject to the orders that may be passed by Hon rsquo ble the High Court of Uttaranchal, in the appeals pending against the earlier orders of the Tribunal, it is directed by way of interim relief that no recovery of the refund amounts will be effected during the pendency of these appeals. All the three applications stand disposed of accordingly. The appeals will come up for final hearing in their due course, unless moved earlier on the basis of any order that may be passed by the Hon rsquo ble the High Court of Uttaranchal in the pending appeals. (Dictated and pronounced in the open Court)
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2006 (12) TMI 393 - CESTAT, NEW DELHI
Confiscation - Duty paid goods - Demand and penalty - Shortage of goods ... ... ... ... ..... is shortage of finished goods in the factory as well as certain non-duty paid goods outside the factory, therefore, I find no merit in the contention of the appellant that penalty is in excessive. 4. emsp The duty paid goods which were found in the tempo were confiscated on the ground that these were used concealing the clandestinely cleared goods. In the present case, the goods are terry towels as certain goods found in excess the goods mentioned in the invoice therefore, it cannot be said that duty paid goods are used for concealing the clandestinely cleared goods. It is not the case of the Revenue that non-duty paid goods are different goods which were concealed under the duty paid goods. As the same goods were found in the tempo, therefore, the confiscation of duty paid goods on the ground that these are used for concealing clandestinely cleared goods is not sustainable hence set aside. The appeal is disposed of as indicated above. (Dictated and pronounced in open Court)
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2006 (12) TMI 392 - CESTAT, KOLKATA
Stay/Dispensation of pre-deposit - Penalty ... ... ... ... ..... fore the issue of show cause notice no penalty is imposable. However, the ld. SDR said that recently the Hon rsquo ble High Court of Punjab and Haryana has set aside the decision of the Large Bench which held that no penalty is imposable when the duty is paid before the issue of show cause notice. Therefore, he contended that the impugned order is legal and proper. However, we note that as per Section 35A(3) proviso, an order of enhancing any penalty shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order. From the records, we find that no show cause notice for imposing penalty has been issued by the Commissioner (Appeals). In the circumstances and also in view of findings of the original authority, we feel that the appellant has prima facie a strong case for non-imposition of penalty. Hence we order waiver of pre-deposit of penalty till the disposal of the appeal. (Dictated and Pronounced in the open Court)
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2006 (12) TMI 391 - CESTAT, BANGALORE
Demand - Limitation ... ... ... ... ..... emsp The learned DR defends the order and submits that the appellants had availed Cenvat credit on the goods namely, gear, gear box and bearing which were received for the purpose of repair/reprocess and return. Since they have availed the Cenvat credit, they are liable to reimburse the same. 3. emsp On a careful consideration of the matter, I notice that the Department was fully aware of the fact that the issue of show cause notice had been done after a lapse of four years. The same is clearly barred by time. The Commissioner (Appeals) has noted in the impugned order that the Order-in-Original is not sustainable. However he has proceeded to confirm the demand solely on the basis of assurance given by the assessee to pay duty if they are not able to find buyers by 31-8-2005. Such confirmation of demand is not on the basis of any legal support. There is no merit in the impugned order and the same is set aside by allowing the appeal. (Pronounced and dictated in the open Court)
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2006 (12) TMI 390 - CESTAT, CHENNAI
Appeal - Cause of action ... ... ... ... ..... er rsquo s order was not so disturbed and the same became final and binding on the department. Hence, for the present appeal, there is no cause of action. Even otherwise, the plea raised by the appellants that the Chief Commissioner rsquo s letter advising his Commissioners to keep similar issues open was received only on 18-4-2006 and therefore, there was no occasion for filing appeal against the impugned order earlier cannot be of any aid to the Department in the present application. There was no issue surviving when the Chief Commissioner rsquo s letter was received by the appellant inasmuch as the impugned order had already been accepted and such acceptance had become final and binding on the Department. Hence there was no question of keeping any issue open by filing appeal. 3. emsp In the result, the appeal gets dismissed for want of cause of action rather than on the ground of limitation. The application also gets dismissed. (Order dictated and pronounced in open Court)
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2006 (12) TMI 389 - CESTAT, BANGALORE
Refund - Amount deposited during investigation ... ... ... ... ..... is not sustainable in law. It is also seen from records that the Commissioner (A) has dropped the proceedings for recovery of duty on this very ground. Therefore, the amount paid during the investigation was not an amount of duty paid but it is only a deposit. Such deposit are required to be refunded when duty is not liable to be paid, as held by the judgment rendered by the Larger Bench in the case of Jayant Glass Inds. (P) Ltd. v. CCE - 2003 (155) E.L.T. 188 (Tri.-LB). This view is also supported by the judgment of Gujarat High Court rendered in the case of Parle International Ltd. v. UOI - 2001 (127) E.L.T. 329 (Guj.). The appellant rsquo s claim for payment of interest on such deposit is also a justifiable claim. The impugned order is set aside and their claim for refund of the amount under deposit is required to be made within one month from the receipt of this order along with interest. Appeal is allowed with consequential relief. (Pronounced and dictated in open Court)
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2006 (12) TMI 388 - CESTAT, NEW DELHI
Demand - Cenvat/Modvat ... ... ... ... ..... cating authority having received the said evidence from the appellants, did not consider it necessary to order a check up at the job worker unit, who incidentally falls within the jurisdiction of the same Commissionerate. If the authorities would have done this exercise, it would have thrown more light on the issue. Having not done so, even today the revenue is unable adduce any evidence, it cannot be said that the appellants had short received the inputs. It is very clear from the record that the appellants had in fact received the entire quantity of goods as indicated in the invoices and dispatched the same quantity to the job worker and received back processed goods, as is evident from the job work challans. Accordingly, I find that the appellants have made out a case in their favour. The impugned order is liable to be set aside and the same is set aside. The appeal is allowed with consequential relief, if any. (Order dictated and pronounced in the open Court on 7-12-2006)
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2006 (12) TMI 387 - CESTAT, BANGALORE
Interest - Delayed payment of duty ... ... ... ... ..... for interest on the deposit made from the date of expiry of three months from CEGAT rsquo s order till the date of payment. 7. emsp Summing up, we order that the Original Authority should reckon the total amount due to the appellant which will be the pre-deposit amount of Rs. 50 lakhs plus interest due to them from three months after the expiry of the Tribunal rsquo s order till the date of payment of the amount. After reckoning the above sum, the Original authority should also calculate the amount due from the appellant on account of duty and interest as decided in para 6 above. The difference between the appellant rsquo s entitlement and the liability of the appellant will be the amount due to the appellant to be refunded by the Revenue. As already an amount of Rs. 20,78,308/- has been refunded, this amount no doubt will also be adjusted in arriving at the amount due to the appellant. 8. emsp The appeal is allowed in the above terms. (Pronounced in open court on 1-12-2006)
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2006 (12) TMI 386 - CESTAT, BANGALORE
Penalty on Customs House Agent - Vicarious Liability ... ... ... ... ..... 4. emsp On a careful consideration of the submissions made by both the sides, we notice that the appellant was not in India when his employee had committed the act of forgery. The appellant was not aware of his employee rsquo s act of forgery. There is no evidence to establish the involvement of the act of forgery in shipping bills with the appellant. In the absence of any evidence, the appellant cannot be held responsible for the alleged act of his employee. Furthermore, Section 117 of the Customs Act, 1962 cannot be invoked for imposing penalty for an offence committed under separate statute of the Foreign Trade (Regulations) Rules, 1993. Further, Madras High Court in the case of Mariammal and Ors. v. M. Ramasubramaniam and Ors. has laid down the proposition of vicarious liability. In view of our discussion and the cited judgment, the imposition of penalty on the appellant is set aside by allowing the appeal. Ordered accordingly. (Pronounced and dictated in the open court)
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2006 (12) TMI 385 - CESTAT, CHENNAI
Exemption - Captive consumption ... ... ... ... ..... uty raised by the Commissioner against the appellants in respect of RCO as direct fuel for the production of steam and electricity which, in turn, were captively used in the manufacture of naphtha and LSHS (along with other petroleum products) which were cleared from the refinery under bond cannot be sustained. As pointed out by learned SDR, it appears, there is a small clearance of the petroleum products at nil rate of duty under relevant Notifications. Leaned counsel has claimed that this clearance of goods was also made under bond, but he has not adduced evidence in support of this claim. Hence we observe that learned Commissioner has rightly demanded duty on that quantity RCO which is proportionate to the quantity of naphtha and LSHS so removed from the refinery. 5. emsp In the result, Appeal No. E/1826/1999 allowed and Appeal No. E/177/2006 is allowed in part. The order impugned in the second appeal will stand modified accordingly. (Dictated and pronounced in open court)
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2006 (12) TMI 384 - CESTAT, CHENNAI
Interpretation of statute - Production capacity based duty - Compounded levy scheme - Words and Phrases - Repeal and omission
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2006 (12) TMI 383 - CESTAT, CHENNAI
Cenvat/Modvat - capital goods - Demand for interest and penalty imposed - SCN issued to recover the balance - manufactured grey fabric of cotton falling under the Chapter Headings 52.07, 52.08, and 52.09 of the Schedule to the Central Excise Tariff Act, 1985 - HELD THAT:- The assessee did not have a production programme culminating with setting up of machinery for manufacturing processed fabric or articles of apparel which they had intimated to the department. A classification list was filed on 18-5-2001, which showed woven fabric of cotton containing 85% or more by weight of cotton as the only dutiable item along with other non-dutiable products manufactured by the assessee. Apparently this entry was meant to cover clearances of such fabrics got manufactured on job work basis. As the appellants did not manufacture any dutiable goods in May, 2001 or in the near future, it cannot be inferred that the said classification list was filed in view of their imminent production of dutiable goods.
The appellants did not have any intention of using the subject capital goods in the manufacture of dutiable final products which they had intimated to the department as in Kailash Auto Builders case [2001 (10) TMI 164 - CEGAT, BANGALORE]. Similarly, the department was not informed that the appellants had a project for setting up a composite mill for manufacture of excisable goods chargeable to duty as in the case of Bhasker Industries Ltd. (supra). Therefore, the ratio of those two decisions is not relevant to the subject case. The Suryaroshini decision was upheld by the Supreme Court. A similar ratio laid down by the Tribunal in Grasim Industries Ltd. case [2004 (3) TMI 277 - CESTAT, CHENNAI] also was upheld by the Apex Court. Therefore, the demand as regards the capital goods credit taken in the impugned order is unassailable.
We find that the appellants had intimated the jurisdictional Dy. Commissioner, the details of the goods cleared by the unit and the fact of import of capital goods and the CVD paid, of which they were entitled to take Cenvat credit. The Dy. Commissioner in his letter, approved the procedure followed by the appellants and specifically informed them that “in the event of clearing the processed fabric without payment of duty, they are not eligible to take Cenvat credit on both inputs and capital goods”.
Considering the fact that the assessee had cleared dutiable goods during the material time though not manufactured by them, and that they had intimated the procedure followed by them to the department, the appellant is entitled to benefit of doubt that they had bonafidely believed in their eligibility to the impugned credit. Also, the credit remains unutilized in their accounts even today. In the circumstances, we find that the appellants do not deserve a penalty u/s 11AC of the Act.
The decision in Zunjarrao Bhikaji Nagarkar [1999 (8) TMI 142 - SUPREME COURT] mandates that when a person is found liable to penalty under Rule I73Q, the adjudicating authority does not have discretion not to impose penalty, but has discretion only as regards the amount of penalty. Rule 13 of the Cenvat Credit Rules is also similar as the relevant language considered in Zunjarrao Bhikaji Nagarkar case. Thus, we hold that the appellants are liable to penalty under Rule 173Q/Rule 13(2). The appeal filed by M/s. Precot Mills Ltd. is thus allowed by way of remand in the above terms. Needless to say that the appellants shall be afforded a reasonable opportunity of being heard in the remand proceedings.
Refrain from demanding interest u/s 11AB on the credit - HELD THAT:- We find that as per the statutory provisions, it is mandatory that when Cenvat credit has been taken wrongly, the same shall be recovered along with interest. In view of the unambiguous mandate of the law, the Commissioner’s order not demanding interest as per the rules is incorrect. Thus, we allow the department’s appear and order that the appellants shall pay appropriate interest on the wrongly taken Cenvat credit to be determined in de novo proceedings.
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2006 (12) TMI 382 - CESTAT, KOLKATA
Stay/Dispensation of pre-deposit - Life saving drugs ... ... ... ... ..... for the Revenue contended that samples were actually drawn. Ld. Counsel for the appellant produced before us the Bills of Entry to show that there is no mention in the said Bill of Entry regarding drawal of samples. Ld. DR is not in a position to show any evidence regarding drawal of samples. Even though the appellant executed the Bond before the Customs Authorities, Raxaul for not selling the goods without no objection certificate from the Drugs Controller, the Customs Authorities cannot expect the appellant to wait indefinitely for disposal of the goods, especially in view of the facts that the impugned goods are life saving drugs. There appears to be set a lapse on the part of the Customs Authorities. Therefore, at this stage, we are inclined to give an order for waiver of pre-deposit of the penalty till the disposal of appeal without expressing any opinion on merits of the case. Stay Petition is disposed of in the above terms. (Dictated and pronounced in the open Court.)
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2006 (12) TMI 381 - CESTAT, BANGALORE
Demand and penalty - Cenvat/Modvat ... ... ... ... ..... motors and the lapse was only a procedural one. I am of the considered opinion that indeed there is only a procedural lapse committed by the Contractor who had taken the work of the Integrated Steel Plant. The value of the motors and the duty payable on them is same. It is the case of interchange of motors and consequent mistake in the raising of the invoices. The mistake is condonable as it is a procedural lapse. The procedural lapse is condonable as held in a large number of Tribunal and Apex Court judgments. Moreover, the installation has taken place in 1997 and 1999. Details of installation and all documents had been furnished to the department. The declarations had already been filed and the same had been added and accepted. The issue of Show Cause Notice after a lapse of several years i.e. on 12-1-2000 is clearly barred by time. The appellants succeed on both the grounds. The appeals are allowed with consequential relief, if any. (Pronounced and dictated in open Court)
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