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Showing 181 to 200 of 665 Records
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2005 (8) TMI 566 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Demand ... ... ... ... ..... documents to determine such demand. We find that the importer is especially an actual user under Project Import Regulations and the duty, which was initially not calculated on the imported goods being registered under Project Import Regulation and on finalisation of the Project would call for need to determine the value, tariff classification, etc. How that has been arrived and duty demands have been made out without having ldquo Vital Document rdquo is not forthcoming. Prima facie it appears that the denial of project import concession was not called for as all ldquo Vital Documents rdquo to assess was available or that the demands arrived are based on assumption etc. in absences of ldquo Vital Documents rdquo . Either way, the duty demands are doubtful and deposits are required to be waived and recovery stayed. Therefore, full waiver of pre-deposit is granted in this case under Section 129E of the Customs Act and recovery stayed. The application is disposed of accordingly.
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2005 (8) TMI 565 - CESTAT, BANGALORE
... ... ... ... ..... ee, by reason of, or in connection with the sale, whether payable at the time of the sale or at any other time, including, but not limited to, any amount charged for, or to make provision for advertising or publicity, marketing and selling organization expenses, storage, outward handling, servicing, warranty, commission or any other matter but does not include the amount of duty of excise, sales tax and other taxes, if any, actually paid or actually payable on such goods. rdquo As can be seen that the transaction value means only the price actually paid or payable for the goods manufactured by the appellants for which the buyer is liable to pay by reason of, or in connection with the sale of the goods. All charges relating to other activities cannot form part of the transaction value. In these circumstances, the Order-in-Appeal has no merits and the same is liable to be set aside. Hence we allow the appeal with consequential relief. (Pronounced in the open Court on 29-8-2005)
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2005 (8) TMI 564 - CESTAT, BANGALORE
Production capacity based duty - Demand - Show Cause Notice ... ... ... ... ..... f duty. Even though in 1998-99, he opted for payment of duty on the basis of Annual Capacity of Production for the subsequent year, he paid duty on the basis of actual production. The appellants could have informed these to the Department. But on account of this lapse, the demand of duty based on the previous year rsquo s Annual Capacity of Production is not justified. In any case, the fact that for a particular year, an assessee opts for payment of duty based on the annual capacity of production cannot bind him for ever to that system of payment. He has every opportunity to switch over to payment of duty on the basis of actual production. We also agree with the appellant rsquo s contention that the show cause notices were premature. There is also no reason for imposition of penalty as there is no evidence for clearance with an intention to evade payment of duty. In these circumstances, we allow the appeal with consequential relief. (Pronounced in the open Court on 26-8-2005)
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2005 (8) TMI 563 - CESTAT, KOLKATA
Smuggling - Non-notified goods - Burden of proof ... ... ... ... ..... ld defeat the very purpose of not notifying under provision of Section 123 as held in the case of Motiur Rahman and Others v. C.C. (Prev.), Patna reported in 2001 (47) RLT 353. Similar view was taken in case of Dhun Darabshaw Randeria v. Commr. of Customs (Preventive), Mumbai reported in 2001 (136) E.L.T. 1136 (Tri.-Mumbai) and Chandrakant U. Shah and Others v. Commr. of Customs, Mumbai reported in 1999 (34) RLT 825. The Appellant rsquo s case is squarely covered by the decision rendered in case of Motiur Rahman and Others v. C.C. (Prev.) reported in 2001 (47) RLT 353 (CEGAT-Kol.). In present case the Revenue failed to establish that the goods were clandestinely imported in India. The burden was cast upon the Revenue to prove the smuggled nature of the goods. The Revenue miserably failed to discharge their burden. The Appeal deserves to be allowed. Consequently, I set aside the impugned order, allow the appeal with consequential benefit to appellant. (Pronounced on 25-8-2005)
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2005 (8) TMI 562 - CESTAT, NEW DELHI
Appeal - Limitation ... ... ... ... ..... d, thereafter, the appellants on 12-5-2005 again filed the appeals along with the miscellaneous applications with the request that the appeals be heard. In view of the fact that the defects were not removed by the appellants and the appeal papers were returned in the month of January, 2003 and only on 12-5-2005, the appeals were again filed and since there is no explanation as to why these appeals between 2003 and 2005 have not been filed, the appeals are dismissed as time-barred. (Dictated and pronounced in open Court)
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2005 (8) TMI 561 - CESTAT, MUMBAI
Cenvat/Modvat - Capital goods ... ... ... ... ..... ise Act, 1944. 5. emsp The Commissioner of Central Excise (Appeals), Mumbai also upheld the Order-in-Original and rejected the appeal filed by the assessee. Aggrieved by the same, the assessee is in appeal before this Tribunal. 6. emsp I have heard both the sides at length on the issue involved in the appeal. The issue is squarely covered in favour of the assessee by the decision in the case of CCE, Kanpur v. Bharat Industries reported in 2000 (120) E.L.T. 362 (Tribunal). It is observed therein that whether it is not disputed that the ldquo Steel Shot rdquo used in or relation to manufacture of the final products, Modvat credit is admissible irrespective of the fact whether they are capital goods or not under Rules 57A and 57Q of the Central Excise Rules, 1944. Therefore in view of settled position of law the appeal filed by the assessee is allowed, while setting aside the impugned order passed by both the authorities in the law. 7. emsp Appeal is allowed. (Dictated in Court)
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2005 (8) TMI 560 - CESTAT, MUMBAI
Refund claim - Limitation - Appeal against adjudication order ... ... ... ... ..... r and within the period of limitation prescribed therein. This proposition answers the above contentions raised by the appellants. Filing of an appeal memo cannot be equated with an application of refund whereunder certain documents as mentioned in the provisions and as required by the authorities concerned are to be submitted. This has been done much later and beyond the period prescribed. 6. emsp The other objection of the appellants is that they have paid the duty under protest. There is no evidence for the same. There shall be specific protest either endorsed in the Bill of Entry or by way of separate letter. The assessment is not provisional as alleged by the appellants. 7. emsp The Commissioner (Appeals) also applied the test of the ratio of Mafatlal case in the impugned Order. 8. emsp In the light of the aforesaid discussion, we find no merits in the appeal filed by M/s. Zauri Agro Chemicals Ltd., and consequently we dismiss the same. (Pronounced in Court on 22-8-2005)
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2005 (8) TMI 559 - CESTAT, MUMBAI
Penalty - Diamonds recovered from aircraft confiscated ... ... ... ... ..... t the appellant was the person who had booked air tickets for himself and others. Paowla rsquo s statement is a very valuable piece of evidence and in the eye of law, his statements have not been retracted and the statement of Paowala and of the travel agent who identified the appellant as the person who had booked air tickets for himself and Paowala, together with the recovery of the diamonds is sufficient to establish the appellant rsquo s involvement in the offence of attempting to smuggling diamonds out of India (taking precious stones out of India rsquo s prohibited under the Foreign Exchange Regulation Act, 1973 unless permitted by a person authorised in this behalf by Reserve Bank of India and the prohibition under FERA, 1973 is deemed to have been imposed under Section 11 of the Customs Act. We therefore hold that penalty upon the appellant is sustainable. However, in the facts and circumstances of the case, we reduce the penalty to Rs. 10,00,000/- (Rupees ten lakhs).
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2005 (8) TMI 558 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Fine and penalty ... ... ... ... ..... er was taken up for adjudication. The Ld. lower authority has ordered the confiscation and redemption fine of Rs. 2 lakhs has been imposed along with penalty aforesaid. 2. emsp After hearing the Ld. DR the applicant being absent and on prima facie consideration finding that prima facie goods cleared on provisional assessment order, fines and penalty are not called for, we would grant full waiver of the pre-deposit requirement under Section 129(E) of the Customs Act, 1962 i.e. we waive the pre-deposit requirement of Rs. 1 lakh penalty as imposed. Matter to come for hearing in turn. (Pronounced in Court)
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2005 (8) TMI 557 - CESTAT, CHENNAI
Cenvat/Modvat - Capital goods ... ... ... ... ..... the appellant rsquo s factory in December 1995 and not after 1-9-1996 as noted by the Commissioner (Appeals). This position is clear from Annexure to the relevant show cause notice. As the above goods were received prior to 23-7-1996, it has to be ascertained as to whether these were covered by Clause (a) or Clause (b) of Explanation (1) to Rule 57Q(1). The bagging machine was used for packing gunny bags. The bagging machine is said to be a packing machine for sugar. Packing of final product is a part of the process of manufacture of the final product. Hence the bagging machine was clearly covered by the definition of capital goods in terms of Clause (a) of Explanation (1) ibid. Spares, for such machines were covered by Clause (b) of the said Explanation. Thus, the spares for bagging machine were eligible for capital goods credit in December 1995. In the result, Appeal No. E/273/2004 also gets allowed. (Operative portion of the order was pronounced in open Court on 18-8-2005)
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2005 (8) TMI 556 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Demand ... ... ... ... ..... The appellants have contended that the departmental authorities cannot go behind the determination made by the authorities under the EXIM policy. We find merit in the contention of the appellants. The notification does not prima facie give any authority to the customs and excise authorities to challenge the quantity permitted to be cleared. Since the appellants have a prima facie case in their favour, we waive the requirement of pre-deposit. 2. emsp However, since the amount involved is high, we fix the regular hearing of the case on 12-9-2005 on out of turn basis. (Pronounced in Court)
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2005 (8) TMI 555 - CESTAT, MUMBAI
Confiscation and penalty - Misdeclaration ... ... ... ... ..... hibited for export. 2. emsp None appears for the appellants in spite of notice and hence we heard the ld. D.R. and perused the records. We find that the examination report clearly shows that the goods did not conform to the declaration as teak flooring panels. The goods were found to be sawn teak wood, the export of which was prohibited under the relevant Exim Policy except when the sawn timber sought to be exported is made exclusively out of imported teak logs/timber subject to the condition specified in Annexure to the Public Notice No. 15 ITC (PN/92-97) dated 31-3-93 as amended and the exporter has admitted that they had not imported any teak logs/timber and therefore the sawn timber would obviously not be made out of imported logs/timber. The goods are therefore, clearly liable to confiscation considering the declared FOB value, we find that there is no reason to interfere with the quantum of fine and penalty and therefore, uphold the impugned order and reject the appeal.
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2005 (8) TMI 554 - CESTAT, BANGALORE
Demand - Cenvat/Modvat ... ... ... ... ..... l has held that there is no manufacture, the question of treating the item falling under Chapter Heading 2108.99 does not arise and hence the question of directing them to pay 8 of the value on the final product is not sustainable. Ld. DR submits that he wants adjournment to file reply to the miscellaneous order. 2. emsp On a careful consideration of the submissions made by both sides and the Final Order, it is very clear that the Tribunal has given a categorical finding that there is no process of manufacture and the item is classifiable under Chapter Heading 2108.99. In the circumstance the question of the appellants to deposit 8 of the value on the final product on the premise that it carries ldquo Nil rdquo rate of duty is not a correct reading of the Final Order of the Tribunal. The appellants succeed in the miscellaneous application and we vacate the detention order. Ordered accordingly. Miscellaneous application is allowed. (Order dictated and pronounced in open Court)
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2005 (8) TMI 553 - CESTAT, BANGALORE
Cenvat/Modvat ... ... ... ... ..... i)(e), accessories of the final product cleared along with such final product, the value of which is to be included in the assessable value of the final product are entitled for Modvat credit. The appellant has strongly contended that the value of the impugned goods was included in the value of the final products namely, Drilling rigs. In these circumstances, the appellants are rightly entitled for the Modvat credit which is equal to duty paid on the impugned goods. The Tribunal order and the Supreme Court decision which the Commissioner (Appeals) relied on relates to a different question namely, whether the impugned goods are parts of Drilling rigs. Those decisions did not involve the Modvat credit. Hence the Commissioner rsquo s (Appeals) reliance on those decisions is not correct. In view of the above observations, we allow the appeal of the appellants with consequential relief. (Operative portion of the order has been pronounced in the open Court on completion of hearing)
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2005 (8) TMI 552 - CESTAT, MUMBAI
Refund - Unjust enrichment ... ... ... ... ..... e weight of the vessel full loaded with cargo, passengers, fuel, stores and crew. Light displacement tonnage is the weight of the vessel without cargo, passengers, fuel, stores and crew. Deadweight tonnage (DWT) is the difference between light displacement tonnage and full displacement tonnage rdquo . 14. emsp The Supreme Court of India, while rejecting the appeal filed by the Department against the above Order of the Tribunal, held that calculation of duty, ballast not to be included 2002 (143) E.L.T. (A81) (Part 1) . 15. emsp Thus, as seen from the above material, which is relevant for the purpose of the decision of this case, makes it clear that the observations made by the ld. Commissioner of Appeal in his impugned order in para 11, are on the ground hypothetic and does not warrant any interference of this Tribunal in the said findings. Therefore, the same is to be upheld. 16. emsp The Revenue appeal lacks merits, accordingly, dismissed. (Pronounced in Court on 12-8-2005)
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2005 (8) TMI 551 - CESTAT, MUMBAI
Demand - Limitation ... ... ... ... ..... were in the knowledge of the revenue and the goods were being cleared after availing exemption with the consent of jurisdictional Central Excise officers. As such, the duty for the period prior to six months from the date of issuance of the show cause notice is set aside. The adjudicating authority is required to confirm the demand only for a period of six months from the date of issuance of the show cause notice and re-quantify the same. At this stage ld. Advocate submits that he would also be entitled to the benefit of Modvat credit of duty paid on the inputs, subject to availability of documentary evidence. 7. emsp We direct the Commissioner to re-quantify the duty for a period of six months after allowing the benefit of Modvat credit, for which purpose the appellants would produce, the relevant documentary evidence. There is also no justification for imposition of penalty. We therefore, set aside the same. Appeal is thus disposed off in above terms. (Pronounced in Court)
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2005 (8) TMI 550 - CESTAT, NEW DELHI
SSI Exemption vis-a-vis Modvat - Option ... ... ... ... ..... s. One crore. In the present case the Commissioner (Appeals) in the impugned order in Para 8.2 and 8.3 after relying upon the Board rsquo s Circular No. B-41/2/97-TRU, dated 14-7-97 held that appellant can opt out of Notification No. 16/97-C.E. but to avail the Modvat with higher concessional rate they had to specifically opt for Notification No. 38/97-C.E. and to file the necessary declaration required under this notification. The Commissioner (Appeals) further held that as no declaration has been filed by the appellant, therefore, they are not entitled for the benefit of this notification and this finding is not challenged by the Revenue. In view of this finding as the benefit of Notification No. 38/97 is being denied, the appellant has to pay duty in respect of the finished goods at the tariff rate. In this situation the denial of Modvat credit is not sustainable and set aside. The appeals are allowed as indicated above. (Dictated and pronounced in open Court on 11-8-2005)
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2005 (8) TMI 549 - CESTAT, NEW DELHI
Cenvat/Modvat - Inputs - Declaration ... ... ... ... ..... all conduct enquiries with regard to duty paid nature of the goods as the suppliers send, ensure that necessary information as mentioned in the Notification are available on the invoice and satisfies himself whether the goods have been used or are intended to be used as applicable in the Modvat Rules. In case the assessee rsquo s invoice contains the details, description of the goods, assessable value, name and address of the factory or warehouse where the goods are to be received, and if the assessee has filed a declaration the Assistant Commissioner having jurisdiction over the factory would allow the credit of duty so paid. It is further clarified by the Board that show cause notices are not to be issued for procedural lapses as mentioned in the Notification. In view of the above amendment made in the Rule 57G and in view of the above circular the impugned order is not sustainable and set aside and the appeal is allowed. (Dictated and pronounced in open Court on 11-8-2005)
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2005 (8) TMI 548 - CESTAT, NEW DELHI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... 23-2-1999 clarified that credit shall not be denied for procedural laps and this amendment is applicable to the pending cases also. The Board clarified that in case assessee rsquo s invoice contains the details i.e. description of goods, assessable value, name and address of the factory or warehouse, where the goods are received, the Assistant Commissioner having jurisdiction of the factory would allow the credit of duty so paid after making enquires. In the present case, the invoices contain all these particulars. Necessary enquires were also made from the jurisdictional Superintendent of Bharat Petroleum Corporation Limited which shows that goods are duty paid. In view of the amendment of Rule 57G and in view of the Board Circular, the denial of credit merely on the ground that invoices are not authenticated if other particulars are available in the invoices and verified by the authorities, the credit cannot be denied. The impugned order is set aside, the appeal is allowed.
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2005 (8) TMI 547 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... ice prepared at the time of the sale of the goods and therefore non-disclosure cannot arise. It is also being submitted that, given the peculiar nature of the goods, prices are negotiated and therefore discounts will vary from buyer to buyer. 2. emsp Variation of quantum of discount is no ground for denying deduction of discount. The requirement for pre-deposit is waived and recovery stayed till the disposal of the appeal. (Dictated and pronounced in the open Court on 8-8-2005)
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