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Case Laws
Showing 181 to 200 of 686 Records
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2006 (2) TMI 547 - CESTAT, NEW DELHI
Confiscation - RG-1 stage - Expert opinion ... ... ... ... ..... missioner has considered the appellants rsquo explanation at length and come to the conclusion that the goods in question were finished goods. He would also submit that at the time of seizure, goods are shown as finished goods and not goods in process. 6. emsp The expert opinion filed by the appellant brings out that maturing is essential for the goods after polymerization. It is seen that at the time of seizure, the goods in question were in open vessels. They have not been packed and not ready for sale. The production accounting can be done only after the process of production is complete. In these circumstances, the charge against the appellant that it had as not entered manufacture in RG 1 register does not seem to be well-founded. The confiscation and the imposition of penalty were, therefore, not justified. 7. emsp In the result, the confiscation and imposition of penalty are set aside and the appeal is allowed to this extent. (Dictated and pronounced in the open Court)
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2006 (2) TMI 546 - CESTAT, NEW DELHI
Cenvat/Modvat - Capital goods ... ... ... ... ..... nt and equipment and the credit is not available as capital goods. To the same effect is the decision of this Tribunal in the case of Max G.B. Limited v. CCE, Chandigarh 2003 (159) E.L.T. 203 (Tri.-Del.) . 4. emsp While there are conflicting decisions of the Tribunal in regard to channels, plates, etc. the issue remains covered in favour of the assessee by the rejection of the Apex Court of the Revenue rsquo s appeal in the case Simbhaoli Sugar Mills Ltd. v. CCE 2001 (135) E.L.T. 1239 . The issue of lubricants remains covered by our decision in the case of M/s. Modi Rubber. There could be dispute about eligibility of chemicals, since they are essential inputs in relation to purification of sugar. 5. emsp In view of what is stated above, denial of credit in regard to welding electrode is confirmed and denial of credit in regard to other items is set aside. The appeal is thus, partly allowed. The appellant shall be entitled to consequential relief, if any. (Pronounced in court)
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2006 (2) TMI 545 - CESTAT, MUMBAI
Refund - Cenvat credit ... ... ... ... ..... e matter for fresh decision as can be seen from the Pee Vee Textiles Ltd. v. CCE, Nagpur - 2005 (186) E.L.T. 252 (Tri.-Mum.). As regards the inability of the appellants to utilize the credit, we are satisfied that the certificate given by the Range Officer can be taken into account for consideration of the refund claim provided the credit relates to duty on inputs used in the export product during the said quarter. 3. emsp The learned Counsel for the appellants is not in a position to clarify whether exports were made under free shipping bills or under drawback shipping bills. As such, we set aside the impugned order and remand the matter for fresh adjudication. The appellants may be allowed refund against unutilized credit subject to verification that the credit relates to duty on inputs used in the export products and that drawback/rebate has not been claimed by the appellants against the said exports. 4. emsp The appeal is thus allowed by way of remand. (Dictated in Court)
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2006 (2) TMI 544 - CESTAT, NEW DELHI
Compounded Levy Scheme - Man-made fabrics ... ... ... ... ..... . 27 (Mad.) 2002 (52) RLT 636 under which the Hon rsquo ble High Court was pleased to declare that Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 1998 ultra vires Section 3A of Central Excise Act and set aside the Rule. 4. emsp The learned DR would contend that since the appellant had opted under the compounded rate it was liable to pay for the entire period. It is his contention that, under the compounded rate, the date of licence would be relevant and not the date of production. 5. emsp It is not in dispute in the present case that the appellant was handed over the unit after breaking excise seal only in the evening of 3-5-99 and started production only on 4-5-1999 and from that day, duty liability remains discharged. Duty demand for prior period is not sustainable. Accordingly, duty demand is set aside. Since duty is not sustainable, penalty is not attracted and the same is also set aside and the appeal is allowed. (Pronounced in the court)
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2006 (2) TMI 543 - CESTAT, NEW DELHI
Cenvat/Modvat on inputs - Time-limit for availment of credit -Computation of ... ... ... ... ..... , in that case the appellants have availed Modvat credit on 17-2-96 i.e. on the last date of the time limit as grained under Rule 57G. Further, I find that in the case of Bullows Paint Equipment (P) Ltd. v. CCE reported at 2001 (138) E.L.T. 1098 (Tribunal), it was held that, ldquo date of filing of Bill of Entry has no relevance to the physical movement of the goods covered thereunder. No certainty that goods covered thereunder would be received in user rsquo s factory within period prescribed under erstwhile Rule 57G of Central Excise Rules, 1944 rdquo . I find that even on this aspect the appellants rsquo case is covered by the decision of the Hon rsquo ble Tribunal as noted above. 4. emsp In view of the facts and circumstances, the Commissioner rsquo s (Appeals) order allowing the respondent to avail the credit on the goods on 17-2-96 is correct order and deserves to be upheld. I do so and Department rsquo s appeal is dismissed. (Order pronounced in open Court on 6-2-2006)
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2006 (2) TMI 542 - CESTAT, BANGALORE
Cenvat/Modvat - Inputs - process of manufacture or not - denied Modvat credit in respect of gases used for various purposes of cutting of Iron & Steel products - HELD THAT:- In Punjab & Haryana High Court in the case of CCE, v. National Fertilizers Ltd.[2001 (10) TMI 111 - HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH], maintenance and overhauling of machinery is an integral part in the process of production. Therefore, the decision of the Larger Bench, rendered in the case of in CCE v. Modi Rubber Ltd. [2000 (5) TMI 64 - CEGAT, NEW DELHI], holds that lubricating oils and greases used for the purpose of lubricating the machines and machinery is to be taken as a process for the manufacture of final product, as it is essential for their working and integrally connected with the manufacture.
In the result, applying the ratio of the Punjab & Haryana High Court judgment noted supra, which in turn refers to two Supreme Court judgments, and by following the ratio of the Larger Bench judgments rendered in Modi Rubber Ltd. and Union Carbide Ltd. [1996 (6) TMI 308 - CEGAT, NEW DELHI-LB], the appellant’s plea is required to be accepted. The inputs viz. Welding Electrodes, Oxygen Gas and Acetylene Gas used for welding the punctured pipes carrying the hot sugar juice should be treated as part of process of manufacture and hence they are eligible inputs for the manufacture of the final product. The appeal is allowed with consequential relief, if any.
Thus, the impugned order is set aside and the appeal is allowed with consequential relief, if any.
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2006 (2) TMI 541 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... Delhi - 2003 (157) E.L.T. 465 (Tri. - Del.) laying down that the charges, collected for installation of machines at buyer rsquo s premises are not to be included in the assessable value of the said machines. It is also the appellants rsquo case that the said services have been made applicable to service tax with effect from 1-7-2003. As such, they cannot be held to be connected with the manufacturing activity so as to include their value in the assessable value of packing machine. 3. emsp After hearing the ld. DR, we find that the issue is prima facie covered by the decision of this Tribunal referred to supra. We accordingly allow the stay petition unconditionally. (Pronounced in Court.)
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2006 (2) TMI 540 - CESTAT, BANGALORE
Exemption - Fuel ... ... ... ... ..... appellant, we find that the concessional rate of duty cannot be denied merely on the ground of change of IGM or Flight No. The flight from Hyderabad to Mumbai carries both domestic and foreign bound passengers. From Mumbai, the aircraft will be bound for its destination abroad. In that case, the aircraft is for the time being engaged in the carriage of goods or passengers between an Airport in India and an Airport outside India touching an intermediate port or airport in India. In other words, the flight, which is the subject matter of this appeal, satisfies the definition of Foreign going Aircraft. In these circumstances, the Aircraft is entitled for supply of fuel at concessional rate of duty. This Tribunal, in the Final Order dated 16-3-2005, cited by the appellant has decided the issue in favour of M/s. IOCL. In view of the above findings, we allow the appeal with consequential relief. (Operative portion of this Order was pronounced in open court on conclusion of hearing)
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2006 (2) TMI 539 - CESTAT, NEW DELHI
Cenvat/Modvat - Interest ... ... ... ... ..... t. No doubt, Modvat credit is also to be treated as excise duty, but in a case of credit refund, no application under any rule is required to be made. It is only the reversal of the entry which has to be made by the assessee himself after the passing of any order in his favour. Therefore, under all these circumstances, whether still any interest could be awarded to the respondents or not, has not been considered by the Commissioner (Appeals). rdquo There is merit in the submission of the learned SDR. When the findings in the remand order was that respondent could have suo mot taken back the reversed credit upon winning in appeal that filing of refund application was unnecessary and the respondent gave up their claim for interest, etc. the Commissioner (Appeals) could not have granted the interest claim. The judgment of Hon rsquo ble Gujarat High Court has no application in the facts of the present case. The appeal fails and is rejected. (Dictated and pronounced in open Court)
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2006 (2) TMI 538 - CESTAT, NEW DELHI
Cenvat/Modvat - Capital goods ... ... ... ... ..... at a later stage and, therefore, such goods cannot be categorized as ldquo exempted goods rdquo for purpose of Rule 57C or Rule 57R. rdquo 5. emsp It was argued that in the above judgments this Tribunal had taken consistent and clear-cut view that in the event of availability of the job work undertaken under which the intermediates are transferred without payment of duty as the manufacturers had undertaken to include the cost of such intermediate products while clearing the final product at their end. 6. emsp The learned Senior Departmental Representative however, reiterates the ratio of the orders passed by the authorities below. 7. emsp We have examined the case records and heard both sides. In view of the overwhelming decisions of this Tribunal on this issue not only in respect of inputs but also capital goods, which have consistently been found to be eligible for availment of Cenvat credit. We hereby set aside the impugned order as not maintainable and allow the appeals.
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2006 (2) TMI 537 - CESTAT, NEW DELHI
Bricks and tiles - Dutiability of - Fire clay bricks ... ... ... ... ..... r resistance to moderate temperature etc. and also in temperature of the order of about 1500 deg C and are liable to be classified as ldquo fire clay bricks rdquo and subject to duty. As pointed out by the assessee, identical issue had been considered by this Tribunal in the case of CCE, Bhopal v. Mahakoshal Potteries and Perfect Chemical Wares and others and the Tribunal, after considering the issue in great detail from the point of view of commercial identity, standards and use held that they are not fire clay bricks. Thus, the issue remains covered in favour of the assessee by the aforesaid orders of the co-ordinate Benches. The duty demand and penalties imposed under the impugned orders are contrary to the issue settled by those orders and are, therefore, not sustainable. Accordingly, the impugned orders are set aside and all the appeals are allowed with consequential relief, if any, to the appellants. (Operative part of the order was already pronounced in the open Court)
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2006 (2) TMI 536 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Production capacity based duty ... ... ... ... ..... not in a position to determine the date from which the change in the installed capacity should be deemed to be effective. This submission of ld. SDR has not been rebutted. Hence, for the present purpose, we are unable to consider the ACP of the manufacturing unit to be 3 MT (as suo motu determined by the party) for the period of dispute. However, their financial hardships will be duly considered. It is not in dispute that the unit became defunct in May, 2001 and has since been declared sick by BIFR. The annual reports also indicate this aspect. However, we do not think that this plea is enough to grant full waiver of pre-deposit and stay of recovery inasmuch as no document evidencing the economic position of the company as on 31-3-2005 is on record. We direct the appellants to pre-deposit 25 of the duty demanded, within 12 weeks (in acceptance of the specific request made by the appellants rsquo Counsel). Report compliance on 29-5-2006. (Dictated and pronounced in open Court)
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2006 (2) TMI 535 - CESTAT, MUMBAI
Refund - Claim for exemption ... ... ... ... ..... y stage even after clearance. The present appeal has been filed by the applicant Commissioner challenging the order of the lower appellate authority. In support, Revenue has cited Hon rsquo ble Supreme Court rsquo s decision in the case of Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) - 2004 (172) E.L.T. 145 (S.C.). I find that while the said decision in the case of Priya Blue (supra) supports the case of the department, the respondent rsquo s case is squarely covered by the decision of the Larger Bench of the Hon rsquo ble Supreme Court in the case of Karnataka Power Corporation Ltd. v. Commissioner of Customs (Appeals), Chennai - 2002 (143) E.L.T. 482 (S.C.) which allowed reassessment of duty and refund claimed by the appellant in that case. Accordingly, following the ratio of the decision of the Larger Bench of the Hon rsquo ble Supreme Court decision in the case of Karnataka Power (supra), the department rsquo s appeal is rejected. (Dictated in Court)
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2006 (2) TMI 534 - CESTAT, MUMBAI
Refund - Unjust enrichment ... ... ... ... ..... riginal inter alia on the ground that the so called duty was collected by enforcing the Bank Guarantee at a later date and the bar of unjust enrichment will not be applicable in such cases. rdquo 2. emsp The lower appellate authority relying on the precedent decisions of the Tribunal has held that the impugned amount realized by enforcement of the Bank Guarantee was only part of the revenue deposit made in pursuance of provisional assessment and he has considered the same as security in terms of Section 18(1) of the Customs Act, 1962 and that same cannot be equated with the duty. Accordingly he has held that the bar of unjust enrichment is not applicable to refund of such amount. I find that the conclusions reached by the lower appellate authority is reasonable and in accordance with the precedent decisions of the Tribunal cited by him. Hence I am of the view that the impugned order does not call for any interference. Department rsquo s appeal is rejected. (Dictated in Court)
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2006 (2) TMI 533 - CESTAT, KOLKATA
Stay/Dispensation of pre-deposit - SSI Exemption ... ... ... ... ..... uppression at all. The Department was well aware of the facts. He also draws my attention to the Commissioner rsquo s (Appeals) Order No. 296/CE/GHY/2000, dated 15-12-2000 wherein it has been held that both the units are one and the benefits of Notifications 15/94, dated 1-3-94 and 65/95, are available. He also submits that the Department has not filed any appeal against this order. 2. emsp Heard Shri I. Mariana, ld. JDR for the Revenue. He reiterates the findings of the lower authorities as well as the then Commissioner (Appeals). 3. emsp After hearing both sides, I find that in this case the Commissioner has decided that both the units are one and he has decided it after taking the legal opinion. Commissioner (Appeals) has held that the benefits of Notifications 15/94 and 65/95 are available to them. In view of this, there is a prima face case in favour of the appellants. I grant stay to the appellant from duty and penalty till further orders. (Pronounced in the open Court)
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2006 (2) TMI 532 - CESTAT, BANGALORE
Valuation - Transaction value ... ... ... ... ..... ity had passed the order in terms of the grounds made out in the show cause notice. Furthermore, the Revenue has relied on the information furnished by lsquo The Economic Times rsquo and lsquo Mineral and Metal Bulletin rsquo . The said evidence is not of contemporaneous in nature and such evidences have not been accepted by the Tribunal as reported in the case of Jindal Strips Ltd. (supra). In absence of any evidence of contemporaneous import at higher rate and also as the appellants were not put to terms in the earlier stage, the further enhancement to US 800 per Metric Tonne is not legal and proper. Therefore, in terms of the Apex Court judgment rendered in the case of Eicher Tractors (supra), the transaction value cannot be enhanced in absence of any evidence. The impugned order is not legal and proper and the same is set aside by allowing the appeals with consequential relief, if any. (Operative portion of this order was pronounced in open Court on conclusion of hearing)
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2006 (2) TMI 531 - CESTAT, NEW DELHI
Cenvat/Modvat ... ... ... ... ..... . emsp The purchases in the instant case are from the consignment agent of the (TISCO) and the duty paid nature of the inputs is made clear by the invoices. issued by the consignment agent. There is also no dispute about the receipt of the impugned goods by the appellant manufacturer or its eligibility to the credit. This Tribunal has held in the case of Hero Cycles that credit is permissible based on the challan-cum-invoice and certificate of consignment agent of TISCO and the Board rsquo s clarification is also to the effect that proceedings for denial of Modvat credit should be initiated only upon satisfaction about the non-duty paid nature of the inputs. 7. emsp Since no dispute is raised about the duty paid nature of the goods and the appellant rsquo s eligibility to credit, the denial of credit was not justified. The order denying the credit is set aside and the appeal is allowed with consequential relief if any, to the appellant. (Dictated and pronounced in open Court)
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2006 (2) TMI 530 - CESTAT, MUMBAI
Penalty - Quantum - Production capacity based duty ... ... ... ... ..... as the maximum amount. The learned D.R. also cites the Division Bench decision of the Jurisdictional Hon rsquo ble High Court of Gujarat in the case of Ambuja Synthetics Mills v. Union of India - 2004 (175) E.L.T. 85 (Guj.) upholding penal action under Rule 96ZQ. In the said judgment it has also been held that the amount specified in the said rule is the maximum amount and the assessing authority has discretion to impose lesser amount of penalty. 2. emsp After going through the case records and following the decisions of the jurisdictional Hon rsquo ble High Court of Gujarat, I set aside the impugned order in appeal passed by the lower appellate authority and restore the orders passed by the original authority with the modification that penalties imposed shall be reduced to 10 of the duty amounts in each case considering the fact that duty amounts along with interest have already been paid. 3. emsp Departmental appeals are disposed off in the above terms. (Dictated in Court)
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2006 (2) TMI 529 - CESTAT, CHENNAI
Stay - Attempt to export “prohibited goods” ... ... ... ... ..... upon to decide in the instant appeal. The issue which will arise in this appeal would be whether misdeclaration of quantity of inputs used in export goods under DEEC scheme would mean attempt to export ldquo prohibited rdquo goods. Apparently, the attempted export was under quantity-based advance licence. Obviously, the scheme itself works on quantities, particularly the quantity of inputs (raw materials) imported and used in export goods. Having found the issue in the instant case to be analogous to the one framed and answered by the Apex Court in Om Prakash Bhatia (supra), the ruling handed down by their lordships in the cited case must squarely be applicable to this case. In the result, the Revenue has a strong case for stay of operation of the impugned order, which prima facie is not sustainable in view of the said ruling of the Apex Court. Accordingly, the operation of the impugned order is stayed till final disposal of the appeal. (Dictated and pronounced in open Court)
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2006 (2) TMI 528 - CESTAT, BANGALORE
Refund - Research institution ... ... ... ... ..... dered by the Kerala High Court in the appellants rsquo own case, the fact of appellant being a research institution has been accepted by the High Court. The appellant in the High Court was Commissioner of Agricultural Income Tax and they had not disputed the appellant being a research institution. In that view of the matter, the provisions of Section 27(1)(a) of the Customs Act would apply. The appellants are entitled to file the refund application within one year. The refund application has been filed within one year and the same is not barred by time. The rejection of the refund application on time bar is not legal and proper. The appeal is allowed by remand to the original authority for considering the refund application on merits. The original authority shall dispose of the matter within four months from the receipt of this order by granting an opportunity of hearing to the appellants. (Operative portion of this order was pronounced in open Court on conclusion of hearing)
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