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Showing 181 to 200 of 604 Records

• 2005 (5) TMI 513 - CESTAT, NEW DELHI
  
  ... ...
  ... ... ..... provisional assessment. The duty was paid at the time of clearance of the goods during March and April, 2000 whereas the refund claim was filed on 8-5-2001 after lapse of one year. Therefore, Adjudicating Authority rightly held the claim to be time barred. The contrary view taken by the Commissioner (Appeals) can not be sustained as he has wrongly raised inferences and opined that the payment of duty was provisional, without there being any provisional assessment order or any other the documentary evidence. He never called for the agreement entered into between the respondents and BSNL to ascertain if it contained any price acceleration clause or not. It was for the respondents to seek provisional assessment from the Competent Authority. But this procedure they did not follow. Therefore, the impugned order of the Commissioner (Appeals) is set aside and the Order-in-Original of the Adjudicating Authority is restored. Appeal of the Revenue is allowed. (Pronounced in the Court)

  ---

• 2005 (5) TMI 512 - CESTAT, CHENNAI
  

  Cenvat/Modvat - Capital goods - Duty paying document

  
  
  ... ...
  ... ... ..... absence of a duplicate invoice. rdquo I find that the said Rule was amended only w.e.f. 23-7-1996 when the duplicate copy was specifically introduced in Rule 57T. Therefore in April, 85 when credit was taken on original invoice, the ratio of aforesaid case law applies, and credit taken is lawful. rsquo 3.Noticeably, in the above order, it was noted that Rule 57T was amended w.e.f. 23-7-96, which meant that the amendment was not retrospective. Nevertheless, capital goods credit taken in April, 95 on the basis of original copy of invoice was allowed to the assessee. The cited decision is clearly per incuriam and cannot be followed in the instant case. 4.As the appellants had taken the credit in question on the basis of original copy of invoice at a time when such document was not admissible for Modvat purpose, there is no reason to interfere with the order of the Commissioner (Appeals). The appeal is dismissed. (Operative part of the order was pronounced in Court on 24-5-2005)

  ---

• 2005 (5) TMI 511 - CESTAT, NEW DELHI
  

  Cenvat/Modvat - Quantum of

  
  
  ... ...
  ... ... ..... t of the respondents, BED was paid at the rate of 24 ad valorem and the respondents had availed the credit. Even if it is accepted for the sake of arguments, that duty payable was only at the rate of 16 , still the revenue, in my view, cannot legally debar the respondents from taking the credit at the rate at which the duty has been actually discharged. The revenue accepted the duty as paid at the time of clearance of the goods and so far that excess amount of duty received by them, had not been refunded to the Noida unit of the respondents. Therefore, the revenue cannot be permitted to enrich itself at both the ends, one by retaining the excess amount of duty and secondly by restricting the credit claim of the respondents. Under the law, the respondents are entitled to claim the credit on the actual paid amount of duty. Therefore, I do not find any illegality in the impugned order and same is upheld. The appeal of the revenue is dismissed. (Order dictated in the open Court.)

  ---

• 2005 (5) TMI 510 - CESTAT, KOLKATA
  

  Stay/Dispensation of pre-deposit - Demand and penalty

  
  
  ... ...
  ... ... ..... o Processed Cotton Fabrics rsquo . He also submits that the Hon rsquo ble Supreme Court has laid down the law that no wording in the Notification can be imported. It has to be interpreted as per the language of the Notification. In view of this, he submits that the applicant/appellant-company has, prima facie, no case, and as such, they may be asked to deposit the full amount of duty and penalty. emsp 3.I have heard both sides and seen the records. I find that the Notification No. 29/96-C.E. as referred to above, does not contain the Grey Cotton Fabrics as input. As such, I am inclined to agree with the learned J.D.R. Looking to the facts and circumstances of the case, I direct the applicant/appellant-company to pay a sum of Rs. 1.8 lakh (Rupees one lakh eighty thousand only) within a period of eight weeks from today. After deposit of the above amount, penalty and interest shall remain dispensed with. Case to come up for compliance on 29-7-2005. (Pronounced in the open Court)

  ---

• 2005 (5) TMI 509 - CESTAT, MUMBAI
  

  Stay/Dispensation of pre-deposit - Valuation

  
  
  ... ...
  ... ... ..... tion is not invocable we observe that apart from the fact that a part of the period is covered under normal period of limitation of one year, larger period of limitation appears to be applicable in the facts and circumstances of the case. The details in regard to this issue can be gone into when the appeal is taken up. There are other issues as well such as whether any adjustments were made while determining the value under Rule 6(b) of Valuation Rules which will be gone into at a later stage. emsp 4.The applicant has not made out a strong prima facie case in his favour so as to waive pre-deposit of duty. We, accordingly, direct the applicant to deposit Rs. 8 lakhs within eight weeks of the receipt of this order and report compliance on 25-7-2005. Upon such deposit further deposit of duty and the entire penalty is waived and recovery stayed. Failure to deposit the amount as directed will result in dismissal of appeal without any further notice. emsp 5.Compliance on 25-7-2005.

  ---

• 2005 (5) TMI 508 - CESTAT, NEW DELHI
  

  Demand - Clandestine removal

  
  
  ... ...
  ... ... ..... ne 1060 to 1080 kg. of cement can be produced. Therefore, we find that this formula does not give exact production of the cement from the fixed quantity of raw material. Further, no experimental test was conducted in support of the formula, which was relied upon by the Revenue. As no investigation is conducted in respect of other raw materials which were essential for the production of cements, therefore the demand on the basis of that appellants suppressed the receipt of one raw-material, is not sustainable rdquo . emsp 15.As I have already noted, there is no evidence in the present case to support the Revenue rsquo s case that there was unaccounted excess production or unaccounted removal of cement. Duty demands are clearly baseless. Penalties were also unwarranted. Penalty being the shadow of duty, it has no separate existence. Accordingly, impugned order is set aside and the appeals are allowed with consequential relief, if any, to the appellant. Pronounced on 27-6-2005 .

  ---

• 2005 (5) TMI 507 - CESTAT, MUMBAI
  

  EXIM - Import of used car - Confiscation - Misdeclaration of year of import

  
  
  ... ...
  ... ... ..... milar facts for a Pajero car imported in 1997 and sold and seized from M/s. Kelogy was ordered to be confiscated only under Section 111(d) and released on redemption fine of Rs. 15,000/- only after coming to a finding that the vehicle was cleared through Customs on the strength of fabricated documents and misdeclaration regarding the usage abroad as in this case. Since the car was purchased under a reasonable belief in this case also, one cannot come to a different finding. The fine in this case is therefore required to be reduced to the same amount of Rs. 15,000/- only and car be released to the appellant. 2.This appeal accordingly is to be allowed after setting aside the order or enhancement of valuation duty demand and interest demand and confiscation under Section 111(m). Confiscation under Section 111(d) upheld and redemption fine is to be reduced to Rs. 15,000/- and offered to the appellant herein. 3.This appeal allowed in above terms. (Pronounced in Court on 20-5-2005)

  ---

• 2005 (5) TMI 506 - CESTAT, MUMBAI
  

  Confiscation and penalty - Marble Blocks - misdeclaration of weight - HELD THAT:- The Marble Gross Weight are approximate arrived weights and differences would be manifest due to reasons of change in scales etc. In that view of the matter, the importers declarations cannot be held to be a misdeclaration on the BE as regards weight. Since the chargeable weight in BE 613774 remains as 65.24 MTs in spite of ascertained weight to be less than Gross Weight as declared; no reason or/& relationship of a mathematical Formula to Gross weight and chargeable weight being established, the proposed to levy duty on values arrived by multiplying per MT the chargeable Rate price with ascertained weight cannot be upheld. If a Baker sells Hot Cross Buns at Rs. 12 to a dozen, then for the thirteenth Bun put on the Basket as Bakers Dozen understood in that Trade cannot call for the Bakers Dozen to be valued at Rs. 13, (misdeclarations called for, as also to demand duty ad valorem pro rata on thirteen Buns price of Rs. 13. However, the situation would be different if the rate of duty is specific and per Bun, then duty will have to be calculated on 13 Buns multiplied by specific rate. Trade Practices are to be honoured if genuine and established charges of misdeclaration in section cannot be upheld.

  We find therefore no reason to uphold confiscation u/s 111(i) &/or 111(m) of the Customs Act, 1962 for the reasons of excess weight & to call for a penalty u/s 112(a) on the importer or to charge duty on value as enhanced. Orders to that effect are set aside & appeal allowed.

  ---

• 2005 (5) TMI 505 - CESTAT, BANGALORE
  

  Demand - Confiscation of goods - Smuggled goods - Penalty

  
  
  ... ...
  ... ... ..... er importation of goods, etc., - Any person, - (a) hellip . (b) who acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111. 22.In this case, we find that the goods seized from the appellant are clearly of foreign origin. The adjudicating authority found that those goods are liable for confiscation. The goods have also been confiscated. Penalty of Rs. 100,000/- has been imposed on the M/s. Patel Angadia and Company under Section 112(b) of Customs Act, 1962. Since in this case the goods in the custody of appellants were found to be smuggled and liable for confiscation, the charge of abetting the smuggling is established. Therefore, we do not find any reason to interfere with the Order in Appeal. Hence, the appeal is rejected. (Pronounced in open Court on 19-5-2005)

  ---

• 2005 (5) TMI 504 - CESTAT, KOLKATA
  

  Refund - Returned goods

  
  
  ... ...
  ... ... ..... rred as it has been filed within the period of six months of the second payment. 4.Heard Shri J.R. Madhiam, ld. JDR who has reiterated the findings of the lower authority and the Commissioner (Appeals). 5.Heard both the sides. I find that the Commissioner (Appeals) has held that the goods were eligible for bringing into the factory under Rule 173H. It is also a fact that the appellant paid the duty as per the directions of the Revenue as referred to above. When the goods have been returned under Rule 173H of the Central Excise Rules and the appellant have paid the duty as per the directions of the Department, the appellants are entitled for the refund claim provided it is proved that they have paid the duty twice and conditions under Rule 173H has been fulfilled. In view of above, I remand the case to the lower authority who will verify the above facts and if both these conditions are fulfilled the appellants are entitled to the refund. The appeal is allowed by way of remand.

  ---

• 2005 (5) TMI 503 - CESTAT, MUMBAI
  

  Appeal - Aggrieved person

  
  
  ... ...
  ... ... ..... ion the matter was adjourned as the Bench could not take up the appeal. On earlier occasions the matter was adjourned twice. 3. As per Section 128 of the Customs Act an aggrieved person can file an appeal with the Tribunal against the order either of Commissioner of Customs or Commissioner (Appeals). In the present case it is evident that the person who has filed the appeal is different from the one against whom the Commissioner of Customs has passed an order. The DRI rsquo s contention that the signature of the appellant is different from the person against whom an order is passed goes uncontroverted. In the absence of any defence from the appellant, we accept the contention of the DRI officer in the form of an Affidavit that Shri M.A. Kapadia is not the person who filed the appeal. It needs no mention that only an aggrieved person can file an appeal. We therefore reject the appeal as not maintainable. The appeal is accordingly dismissed. (Operative part pronounced in Court)

  ---

• 2005 (5) TMI 502 - CESTAT, KOLKATA
  

  Cenvat/Modvat - Inputs - Duty paying Documents

  
  
  ... ...
  ... ... ..... s submitted by appellant on 8-8-96. The Appellant has declared inputs ldquo As per list attached 8471 to 8473 rdquo . The perusal of list reveals that I.C. is not declared as input rdquo . The contention of learned Consultant that the I.C. and CPU are one and the same thing is not tenable. Filing a declaration is a substantive requirement to check the evasion of duty. The Appellant could not produce any technical proof that the CPU and the Integrated Circuit are one and the same thing. Therefore, the contention of appellant cannot be acceptable. So far the decision cited by the learned Consultant is concerned, they pertain to all those cases where the inputs were exempted from duty and had subsequently became dutiable. Under these circumstances, the Tribunal held that filing of declaration was not fatal. The impugned order of the Commissioner (Appeals) is reasoned and elaborate. It does not require any interference. The appeal has no merit. Consequently, I dismiss the appeal.

  ---

• 2005 (5) TMI 501 - CESTAT, NEW DELHI
  

  Interest and penalty

  
  
  ... ...
  ... ... ..... of Cenvat credit and no appeal was filed against that demand. Thus, the demand had become final. In this factual situation, revenue is right in its contention that demand which had become final cannot be allowed to be reopened in the recovery proceeding. In this view of the matter, we find ourselves not in a position to interfere with the order inasmuch as it relates to direction to pay interest in cash/from PLA. 19 emsp 4.Revenue rsquo s appeal as directed should have been equal to the interest amount. With regard to the penalty, the submission of the learned Counsel for the assessee is that, since, in terms of Section 11AB more of the interest was not payable at all (only an amount of Rs. 1,17,000/- is subsequent to the period 29-9-96) we feel that penalty imposed is excessive. It is, accordingly, reduced to Rs. 1 lac (rupees one lac only). emsp 5.The appeals are disposed of subject to the above modification in the penalty amount. (Dictated and pronounced in the open Court)

  ---

• 2005 (5) TMI 500 - CESTAT, KOLKATA
  

  Refund of pre-deposit - Order, Tribunal’s order - Non-compliance thereof

  
  
  ... ...
  ... ... ..... sued by the Board, the Departmental authorities have not bothered to implement the order of the Tribunal. The Revenue has not obtained a stay against the order of the Tribunal. Therefore, simply mentioning that CESTAT order has not been accepted by the Departmental Authority conveyed by Supdt. is nothing but disrespect shown to the Tribunal as well as to other judicial forums . It is their duty to follow the directions issued in the order passed by the CESTAT. We direct the Commissioner to ensure that the Tribunal Order is complied with within one month from today or produce a stay order from the competent authority staying operation of the order of CESTAT. If above is not done, the Commissioner should appear to this Bench personally on 29th of June, 2005 to explain the stand of the Department. A copy of this order be sent to the Chairman, CBEC, New Delhi for taking action as deemed fit. emsp 4.Case to come up for hearing on 29th of June, 2005. (Pronounced in the open Court.)

  ---

• 2005 (5) TMI 499 - CESTAT, NEW DELHI
  
  ... ...
  ... ... ..... e of duty, the item in question was Feedstock for the manufacture of Xylene. In these circumstances, we are in agreement with the appellants that there was no mis-declaration, certainly not wilful. The terminology also cannot be called as mis-description inasmuch as the item rsquo s composition was also C5 i.e. 5 Carbons. That is what the description also stated. The dispute is basically only around correct classification, whether it should be under Heading 27.10 or 27.07. The appellant has accepted the classification and discharged the duty. Thus, the dispute was only legal in nature and not about bona fide. emsp 5.In the view we have taken above, the imposition of penalty in terms of Section 11AC is not called for, inasmuch as that Section relates to penalty in cases involving fraud, misdeclaration, suppression of facts etc. Since these ingredients are absent in the present case, the penalty is set aside and the appeal is allowed. (Dictated and pronounced in the open court)

  ---

• 2005 (5) TMI 498 - CESTAT, MUMBAI
  

  Cenvat/Modvat

  
  
  ... ...
  ... ... ..... on. Further, the reliance placed on the decision of the Tribunal in case of M/s. Hotline Teletubes reported in 1998 (102) E.L.T. 23 (Tri.) 1998 (27) RLT 185 is also not acceptable, since the provisions laid down under Notification No. 85/87, dtd. 1-3-97 are mandatory in nature and as such are binding which has been reiterated as per CEGAT Order No. A-968/98/NB, dtd. 4-9-98 in case of M/s. Akansha Steel Ltd. v. CCE, Meerut. Also, non-observation of procedural condition cannot be condoned, since it may facilitate commission of fraud and introduce administrative inconvenience, the same was also reiterated by the Hon rsquo ble Supreme Court in the judgment reported at 1991 (55) E.L.T. 454 (S.C.). 3.I fully agree with the submission of the ld. JDR as mentioned above. I do not find any legal force in the order of the Commissioner (Appeals). The order passed by the Commissioner (Appeals) is, therefore, set aside and the appeals filed by the Revenue are allowed. (Pronounced in Court)

  ---

• 2005 (5) TMI 497 - CESTAT, MUMBAI
  

  Demand - Valuation - Penalty - Employee of assessee-company

  
  
  ... ...
  ... ... ..... entral Excise Rules, 1944. rdquo 8.Thus, it may be seen from the above that Shri V. Sunder Raj can hardly claim the protection of the aforesaid decision of the Tribunal when he was looking after the excise matters of the company as well as the authorized signatory in excise matters. Being a qualified person it cannot be said that he is an innocent person. Moreover, lsquo ignorance of law rsquo is no excuse. Therefore, we do not find that he is not responsible for undervaluation and thus evasion of the Central Excise duty. However, since he has left the company and claims that he is not in regular employment somewhere-else but doing the work on ad hoc basis, we can only take a sympathetic view for him and we accordingly reduce the penalty imposed on him from Rs. 3 lakhs to Rs. 1 lakh. Except the above, we do not find any reasons to interfere with the order passed by the Commissioner. We, therefore, dismiss the appeals filed by the appellants. (Pronounced in Court on 17-5-2005)

  ---

• 2005 (5) TMI 496 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
  

  Settlement Commission - Dialatory lactics by Revenue

  
  
  ... ...
  ... ... ..... issued thereunder and the concerned parties are also not part of this proceedings, the question of granting immunity therefrom does not arise. 10.The above immunities are granted to the applicant in terms of Section 127H of the Customs Act, 1962. emsp 11.This order of settlement shall be void if the Settlement Commission subsequently finds that it has been obtained by fraud or misinterpretation of facts. 12.In the context of the case, the Commission is at pain to note the non-cooperative and aggressive attitude adopted by the Revenue. It gives a feeling that the Revenue rsquo s interest for quick settlement of dispute through the machinery of Settlement provisions in the law is at best lukewarm. We would like to recall the apex Court rsquo s observations in the case of U.O.I. v. Kamlakshi Finance Corpn. 1991 (55) E.L.T. 433 (S.C.) 1992 (38) ECR 486 (S.C.) 1992 (SUI) SCC - 648 (SC) with regard to judicial discipline for their benefit. 13.All concerned are informed accordingly.

  ---

• 2005 (5) TMI 495 - CESTAT, MUMBAI
  

  Cenvat/Modvat

  
  
  ... ...
  ... ... ..... when such credit was availed. 2.Department is seeking to reverse the credit at rates and amounts as if these goods were manufactured by the Respondent while respondent reversed the credit equivalent to the credit availed originally. 3.We cannot interpret this term lsquo as if manufactured rsquo which is deeming fiction of law for the purpose of recovery of credit to be interpreted to levy duty on the capital goods which was not levied under Section 3 ab initio when they were manufactured following the decision of CCE, Vadodara v. Asia Brown Boveri Ltd., 2000 (120) E.L.T. 228 (Tribunal-LB) which the Revenue has taken as a ground that an appeal has been filed and the same now stands disposed of by the Supreme Court 2001 (131) E.L.T. A149 (S.C.) as the amount involved there was too less and the order of Larger Bench was not reversed, we would find no merits in the Revenue rsquo s appeal. The same is rejected. Cross-objection stands disposed of accordingly. (Pronounced in Court)

  ---

• 2005 (5) TMI 494 - CESTAT, NEW DELHI
  

  Cenvat/Modvat Scheme - Penalty

  
  
  ... ...
  ... ... ..... posited the amount before the issue of show cause notice. emsp 3.We have perused the records and heard the learned DR also. The judgment of the Apex Court in the case of Eicher Motors Ltd. would be of no avail to the appellant in view of amendment vide Finance Act, 1999 in Section 37B of the Central Excise Act. However, the appellant rsquo s submission that no penalty was warranted is required to be accepted in view of the decision of the Larger Bench of this Tribunal in C.C.E. v. Machino Montell (I) Ltd. - 2004 (168) E.L.T. 466, wherein it was held that once duty is paid before the issuance of show cause notice, penalty could not be attracted. In the present case, the appellant had paid duty within a few weeks of the utilisation of the credit and before the issuance of show cause notice. 4.In view of what is stated above, the impugned order is modified to the extent of setting aside the penalty. The appeal, thus, stands partly allowed. (Dictated and pronounced in open Court)

  ---

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