Advanced Search Options
Case Laws
Showing 181 to 200 of 645 Records
-
2007 (5) TMI 511 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Cenvat/Modvat - Capital goods ... ... ... ... ..... of credit. 4. emsp The order is contrary to the decisions of this Tribunal in the case of Kirloskar Oil Engines Ltd. v. Commissioner of Central Excise - 2004 (178) E.L.T. 998 and Commissioner of Central Excise, Indore v. Kinetic Motors Co. Ltd. - 2005 (183) E.L.T. 300. Statement of assets in a Balance Sheet is not the basis for allowing credit, nor for denying credit. Credit depends upon the use of capital goods for production in the factory. In the present case, there is no dispute on that. 4. emsp Prima facie, the order is not in conformity with the law or the orders of this Tribunal. In view of this, it is stayed and there shall be no recovery till the disposal of the appeal. (Dictated and pronounced in open Court)
-
2007 (5) TMI 510 - CESTAT, MUMBAI
Cenvat/Modvat - Job work ... ... ... ... ..... n Sterlite Industries (I) Ltd. v. CCE, Pune - 2005 (183) E.L.T. 353 (Tri.-LB) that a job worker, who receives goods from other manufacturers for manufacture on job-work basis, was entitled to take credit of duty in respect of other inputs received directly and used in the manufacture of such goods. It was further held that goods manufactured on job-work basis, cleared without payment of duty, were not hit by the provision of erstwhile Rule 57C of Central Excise Rules, 1944. Therefore, the demand cannot be sustained. The law is settled that if the demand itself cannot be sustained, the penalty is also not sustainable. From the above findings of the Commissioner (A) it can be seen that he has passed the order correctly, on the basis of law as settled by Larger Bench in the case of Sterlite Industries (I) Ltd. - 2005 (183) E.L.T. 353 (Tribunal-LB). 5. emsp Accordingly, I do not find any infirmity in the impugned order. Appeal filed by the revenue is rejected. (Dictated in Court)
-
2007 (5) TMI 509 - CESTAT, CHENNAI
Rectification of mistake - Error apparent on face of record ... ... ... ... ..... iled the appeal in the year 2000 but the same was not relied on the memo of appeal. The decision of the Bangalore Bench, of course, was rendered subsequent to the filing of the appeal, but unfortunately, it was not brought to the notice of the Bench when the final order was passed. In the circumstances, as rightly pointed out by learned SDR, it cannot be said that any of the decisions cited in the present application was a part of the record of the case when the final order was passed. Consequently, non-consideration of such case law would not be an error of the kind described as ldquo error apparent on the face of the record rdquo . No other error has been pointed out in the final order. 3. emsp The final order reflects our decision on merits and the same is appealable. Obviously, the remedy against it is not an application of this kind but an appeal to the competent appellate court. 4. emsp In the result, the application is dismissed. (Dictated and pronounced in open Court)
-
2007 (5) TMI 508 - CESTAT, MUMBAI
Appeal to Appellate Tribunal - Maintainability of ... ... ... ... ..... Tribunal. 4. emsp Learned J.D.R. reiterates the finding of the Commissioner (Appeals). 5. Considered the submissions made at length by both sides and perused the records. It is seen from the record that the current appellant had not filed separate appeal before the first appellate authority. Provisions of Section 35 of the Central Excise Act, 1944, clearly indicate that an aggrieved person has to prefer an appeal before the appellate authority, in the absence of any such appeal, the adjudication order attains finality. The Commissioner (Appeals) was correct while coming to conclusion that the appellant before me today has not preferred any appeal before him. The appellant having not preferred any appeal cannot challenge the finding of the impugned order in appeal. As such I find no merit in the argument and the appeal is not maintainable before the Tribunal in the absence of any challenge to adjudication order, in proper forum. 6. emsp Appeal is dismissed. (Dictated in Court)
-
2007 (5) TMI 507 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Interest ... ... ... ... ..... y and on Education Cess under Rule 7(4) of the Central Excise Rules, 2002 read with Section 11AB of the Central Excise Act. Though the period for which interest was demanded and the rate at which it should be recovered were known to the authorities, they have not quantified the amount of interest. In the circumstances, there can be no recovery of interest till final disposal of the appeal. There is no requirement, in law, of waiver of pre-deposit of interest amount. The present application is accordingly disposed of. (Dictated and pronounced in open Court)
-
2007 (5) TMI 506 - CESTAT, KOLKATA
Refund - Time Limitation - Unjust enrichment - Held that: - the appellants have demonstrated that they have borne extra duty burden themselves and have not passed on the same to their buyers - in view of the fact that the invoice clearly states that CV duty was not charged, there is no scope for the buyers to avail of the Modvat credit and hence insisting on a Certificate from the Central Excise authorities particularly when the buyers are traders, does not appear necessary for settling the refund claim - appellants are entitled to refund claim - appeal allowed.
-
2007 (5) TMI 505 - CESTAT, MUMBAI
Refund - Unjust enrichment - Applicability of ... ... ... ... ..... indicate that the appellant have not passed on incidence of duty to ultimate buyer and Revenue has not come out any contrary evidence indicating that it is not so. In the absence of any contrary evidence, the Chartered Accountant Certificate has to be considered as an evidence of non-passing of incidence of duty to the customers. The ratio laid down by the Tribunal in the case of Commissioner of Customs and Central Excise, Gantur v. Empee Sugar and Chemicals Ltd. as reported at 2007 (211) E.L.T. 293 (Tri. Bang.) and Gopi Krishna Processors Pvt. Ltd. v. Commissioner of Central Excise, Jallandhar as reported at 2007 (210) E.L.T. 529 (Tri.-Del.) will squarely cover the issue in this case. 5. emsp Accordingly respectfully following the decisions of the Tribunal and even on merits, I find that the impugned orders rejecting the refund claim of the appellant are unsustainable. The impugned order is set aside and appeal is allowed with consequential relief if any. (Dictated in Court)
-
2007 (5) TMI 504 - CESTAT, NEW DELHI
Demand - Production capacity based duty, reverting to actual production based levy ... ... ... ... ..... uty merely for the reason that sale of this quantity had not been explained to the revenue. Ld. Counsel would also point out that details of the disposal had been placed before the authorities during the proceedings, but they refused to consider them on the ground that these were not produced before the stock taking authority. 5. emsp There is merit in the appellant rsquo s contention that the stock outstanding at the time of its revertion to actual production based levy is not to be taken into account for the purpose of the present proceedings, as those goods remained duty paid under compounded levy scheme. The factual position is required to be verified from the relevant records. The matter should, therefore, go back to the original authority for a fresh determination. 6. emsp In the result, the impugned order is set aside and the case is remitted to the original authority for a fresh determination. The appeal is allowed by way of remand. (Order dictated in the open Court.)
-
2007 (5) TMI 503 - CESTAT, NEW DELHI
Cenvat/Modvat - Capital goods ... ... ... ... ..... the items are used in civil construction is not supported by any material. The certificate makes it clear that all uses are either in repair of machinery, plant, tank etc. or as supports to plant and machinery to keep them in place, according to the design of the plant. It is also clear from the board rsquo s circular that all accessories, components and parts are eligible for benefit under Rule 57Q(d). Thus, the appellant rsquo s claim specifically comes within the ambit of Rule 57Q(d) now Rule 2b(iii) under Modvat/Cenvat Credit Rules which allows credit to components, parts and accessories. 8. emsp In view of what is stated above, the claim for credit of Rs. 77,799/- (Rs. Seventy Seven Thousand Seven Hundred Ninety Nine) is allowed. 9. emsp Given the purely legal nature of the dispute, there is no warrant for penalty on the appellant. Therefore, the penalty imposed also is set aside. 10. emsp The appeal is ordered in the above terms. (Dictated and pronounced in open Court)
-
2007 (5) TMI 502 - CESTAT, KOLKATA
Production capacity based duty - Annual capacity of production ... ... ... ... ..... on the basis of the revised declaration. However, the revised ACP based on the declaration dated 19-9-97 had not been made applicable from 1-9-97 leading to this appeal. 2. emsp The reason given by the adjudicating Commissioner is that the verification could not be done between the date of second declaration and the verification on 28-12-98 for various reasons such as the rolling mill having been dismantled etc. However, we find no allegation in the records that the appellants altered the parameters during the period between the declaration on 19-9-97 and the date of verification on 28-12-98. Hence, it would be reasonable to apply the revised declaration with effect from 1-9-97 on which date the notification was amended providing a different basis for determining the crucial parameters. Accordingly, we set aside the impugned Order and allow the appeals with consequential benefits to the appellants. We allow all these appeals accordingly. Dictated and Pronounced in the Court.
-
2007 (5) TMI 501 - CESTAT, KOLKATA
... ... ... ... ..... he assessable value is not legal or correct. 3. emsp We have heard the ld. DR who supports the order passed by the Lower Authority. 4. emsp After hearing both sides and perusal of case record, we find that there is no clear finding by the Adjudicating Commissioner who has entertained doubts as to why the amount of Rs. 44/- is being charged in a different name and she is in doubt as to why the Appellants are charging two amounts Rs. 44/- and then the equalized freight beyond the FDZ. We are of the view by that the answer to the issues have been adequately supplied by the Appellants and in view of specific rule allowing transport charges to be excluded from the assessable value and also the fact that the invoices clearly show such charges separately, there was no reason to add the amount of Rs. 44/- to the assessable value. Accordingly, we set aside the impugned order and allow the appeal. The Stay Application also stands disposed off. Dictated and Pronounced in the open Court.
-
2007 (5) TMI 500 - CESTAT, CHENNAI
Adjudication - Jurisdiction ... ... ... ... ..... on between demand of duty under Section 11A of the Central Excise Act and one under Rule 96ZO ibid. The appellant has no case that any valuation or classification dispute had to be adjudicated upon in this case. On the other hand, it is fairly conceded that this is a case involving demand of unpaid duty pure and simplicitor. The amount of duty is far in excess of Rs. 2.00 lakhs the limit prescribed for AC/DC and even Rs. 10.00 lakhs the limit prescribed for Addl. Commissioner . In the circumstances, the case ought to have been dealt with by the Commissioner in terms of the Board rsquo s Circular. Learned Commissioner (Appeals) is right in having set aside the Assistant Commissioner rsquo s order passed in adjudication of the show-cause notice. His order is sustained and this appeal is dismissed. The jurisdictional Commissioner is at liberty to adjudicate the show-cause notice in accordance with law and the principles of natural justice. (Dictated and pronounced in open Court)
-
2007 (5) TMI 499 - CESTAT, KOLKATA
Seizure - Smuggling ... ... ... ... ..... view of the Tribunal s decision in the case of Narendra Kr. Jain v. Commr. of Customs (P), Shillong reported in 2001 (136) E.L.T. 594 (Tri.-Kolkata). 4. emsp After hearing both sides and perusal of the case records, I find that the seizure report does not indicate any foreign marking on the gold. The purity is also not of 999 generally found with the foreign origin gold. The seizure report also does not indicate the individual weight of the gold pieces. As such, this is a case where the benefit of doubt requires to be extended to the appellants as there is no conclusive proof that the gold is of foreign origin and smuggled. Accordingly, the impugned order is set aside and the appeals are allowed. (Dictated and pronounced in the open Court)
-
2007 (5) TMI 498 - CESTAT, BANGALORE
Appeal to Commissioner (Appeals) - Time Limitation - Held that: - The Commissioner of Customs office had committed a mistake in not handing over the papers to Commissioner of Customs (Appeals). The Commissioner of Customs ought to have immediately remitted the papers to Commissioner (Appeals) which would have saved the time. The filing before the Commissioner of Customs is to be held as proper filing - matter remanded to the Commissioner (Appeals).
-
2007 (5) TMI 497 - CESTAT, BANGALORE
Remission of duty - rejection on the ground that the goods have already left the factory and the destruction of the goods has not taken place within the factory - Held that: - the goods had gone to the job workers premises and the same were removed under bond to the assessee’s factory for further processing - the destruction of the goods is deemed to have taken place within the factory - appeal allowed - decided in favor of appellant.
-
2007 (5) TMI 496 - CESTAT, CHENNAI
Penalty on Customs House Agent - export of red sanders wood - Held that: - the appellants had no active role in the transactions that led to the confiscation of the contraband red sanderwood logs. The Commissioner did not find that the appellants had been knowingly involved in the attempt to export the sanderwood logs. The CHA or their Manager, the appellant Shri M.M. Parthasarathy being negligent, facilitated the attempt to unauthorisedly export the prohibited goods cannot be held to have been substantiated in the impugned order. Section 114(i) of the Customs Act does not contemplate penalty for negligence - appeal allowed - decided in favor of appellant.
-
2007 (5) TMI 495 - CESTAT, AHMEDABAD
Cenvat/Modvat credit - inputs - non-receipt of inputs - Held that: - There is no contrary evidence to the appellant’s claim that they converted input received as indicated in the duty paying documents, but denial of Modvat/Cenvat credit to the appellant on the ground that they have not received the input along with the duty paying documents. There is also no evidence as to any flow back of money from dealer to the appellant - appeal allowed - decided in favor of appellant.
-
2007 (5) TMI 494 - CESTAT, NEW DELHI
Smuggled goods - Burden of proof ... ... ... ... ..... regarding legal import / possession of the seized goods should have been immediately produced by the respondents after the seizure. Thus, the Revenue doubts that the goods imported vide Bill of Entry No. 390006 dated 17-11-2004 cannot be considered to be one and the same as the seized goods. 4. emsp None appeared on behalf of the respondents. Learned Departmental Representative reiterates the contention of the grounds of appeal, which smacks of suspicion on the part of the Revenue without having any substantial evidence to show that the respondent was at fault. It is clear from the Commissioners order that the departmental authorities have to discharge the burden of proof that the goods were smuggled and it is not the respondent to prove that the goods were not smuggled as held by this Tribunal in the case of Aslam Noor Mahammad v. CCE reported in 2004 (169) E.L.T. 243 (Mumbai). In view of the above reasoning, the appeal of the Revenue is dimissed. Dictated in the open Court
-
2007 (5) TMI 493 - CESTAT, KOLKATA
Cenvat/Modvat ... ... ... ... ..... puts including inputs used in the manufacture of capital goods which are used in the manufacture of final goods. The provisions of Rule 6 of the CENVAT Credit Rules 2004 is applicable to a case where a manufacturer clears final goods partly on payment of duty and partly availing the duty-exemption. In this case, admittedly, all final goods produced by the appellants are dutiable. Hence, we are of the view that the credit of duty paid on the inputs used in the manufacture of storage tanks is admissible under the Rules. 6.1. emsp Payment of duty on the tanks as well as taking credit on the same, in our view, was an avoidable exercise and in any case, revenue-neutral and the same cannot come in the way of denying the credit on the inputs used in the manufacture of capital goods used within the factory of production for further manufacture of dutiable final goods. 7. emsp Accordingly, we set aside the impugned Order and allow the appeal. Dictated and pronounced in the open Court.
-
2007 (5) TMI 492 - CESTAT, MUMBAI
Rectification of mistake ... ... ... ... ..... ication of mistake cannot be sought on the ground that all the grounds mentioned in the memorandum of appeal were not dealt with by the Tribunal when it pronounced the final order. Even otherwise the decision cited by the applicant in the case of Union of India v. Food Specialties Limited and Flock (India) Pvt. Ltd. are not relevant as in the case of refund was sought or assessment challenged for the period for which classification was approved and not for the future period when the assessments itself were made provisional. Even the decision in the case of J.K. Synthetics Ltd. v. Union of India is not relevant as the department in this case has relied upon Tribunal and Supreme Court decisions rendered subsequent to the decision of the Commissioner (Appeals), if these decisions according to the applicant have been mis-interpreted, they are free to file an appeal against the same. 15. emsp In view of the above, ROM application is rejected. (pronounced in the Court on 14-5-2007)
............
|