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Case Laws
Showing 201 to 220 of 568 Records
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2003 (10) TMI 497 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... correlating the goods to the truck appears to have been relied on by the Customs authorities in this case. It is also found that none of the goods was notified under Section 123 of the Customs Act. It is submitted by the Counsel for the applicant that there was no material on record before the Customs authorities to allege that the electronic goods were liable to confiscation and, for that matter, to allege that the truck was liable to confiscation. According to the learned Counsel, the time gap between the date of first detection of the goods in the truck (by the officers of customs) and that of the seizure thereof, without any cogent explanation, is enough to render the Department rsquo s case weak and consequently the applicant has a strong prima facie case. 2. emsp In view of the above submissions which indicate a prima facie case for the applicant, waiver of pre-deposit and stay of recovery are granted in respect of the penalty amount. The appeal is posted to 29-12-2003.
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2003 (10) TMI 496 - CESTAT, MUMBAI
Production capacity based duty ... ... ... ... ..... e governed by the provisions contained under Notification No. 57/97 which came into force on 1-9-97. There is no dispute on the fact that the goods in respect of which duty is demanded were manufactured before 31st August, 1997 and cleared subsequently. If that be so, the clarification given in paragraph 5 of the Ministry rsquo s letter dated 30-8-1997 would apply to the appellant rsquo s case. In view of the above they are not liable to pay duty in accordance with Notification No. 57/97. In the light of the above, we set aside the order impugned and allow the appeal.
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2003 (10) TMI 495 - CESTAT, NEW DELHI
Appeal to Commissioner (Appeals) - Jurisdiction ... ... ... ... ..... the Commissioner of Customs (Appeals), Delhi-I in terms of Sr. No. (1) of the table annexed to Notification No. 16/02-Cus. (N.T.), dated 7-3-2002 (as amended). No other notification affecting the jurisdiction of Commissioner of Customs (Appeals), Delhi-I has been brought to my notice. In the result, it is found that the appeal preferred against the decision order dated 28-9-2000 of the Deputy Commissioner of Customs, CFS, Ludhiana has been entertained without jurisdiction by the Commissioner of Customs (Appeals), Jalandhar on 30-7-2003. Consequently, the impugned order is set aside and the Commissioner of Customs (Appeals), Delhi-I is directed to deal with the appeal of the party in terms of Sr. No. (1) of the table annexed to Notification No. 16/02-Cus. (N.T.), dated 7-3-2002 (as amended). The appeal on the file of the Commissioner of Customs (Appeals), Jalandhar shall be transferred to the file of his counterpart at Delhi-I. 2. emsp The appeal is allowed in the above terms.
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2003 (10) TMI 494 - CESTAT, CHENNAI
Hospital equipments - Exemption ... ... ... ... ..... so find from the impugned order that the appellants have got no facility for indoor patients treatment and no bed was found available with them in the clinic, at the time of inspection carried out by the competent authority. Even the Director General of Health Services vide their letter dated 27-10-1997 had withdrawn the two CDECs issued to the appellants on the ground that they were not having any indoor bed facility so as to claim exemption from payment of customs duty under the said notification. We do not find any evidence on record to contradict these findings of the adjudicating authority recorded in the impugned order. Therefore, benefit of the notification in question, on the second ground, has been also rightly denied to the appellants. 6. emsp In the light of discussion made above, the benefit of exemption Notification No. 64/88-Cus., in our view, has been correctly denied to the appellants. The impugned order is upheld and the appeal of the appellants is dismissed.
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2003 (10) TMI 493 - CESTAT, MUMBAI
Cenvat/Modvat - Capital goods ... ... ... ... ..... carries on his business? If the answer is in the affirmative, it will be a plant. rdquo 5. emsp Considering the wider definition of a plant as pronounced by the Hon rsquo ble Supreme Court and also considering the Supreme Court judgment in Jawahar Mills Ltd. case 2001 (132) E.L.T. 3 (S.C.) , it is amply clear that the items namely Cylindrical Verticle Tank and Lab Hot Plate and Multipurpose Table Top Scale (Item Number IV to VI) will also get covered for allowing credit 6. emsp So far as, the item Quick Drying Synthetic Enamel Chetak Blue, is concerned, the learned C.A. submits that claim for this item is not pressed. Therefore, the appeal to this extent has to be rejected. For remaining items the appeal succeeds in terms of the analysis made above. 7. emsp Accordingly, claim for credit in respect of 7 items out of the 8 is allowed while that in respect of Quick Drying Synthetic Enamel Chetak blue (Sr. VII of the list) is rejected. 8. emsp The appeal is disposed off as above.
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2003 (10) TMI 492 - CESTAT, NEW DELHI
Rectification of mistake ... ... ... ... ..... not think that any ldquo mistake rdquo to be rectified under Section 129B(2) is involved in the order of confiscation with option for redemption. On the other hand, it is abundantly clear from the order itself that the order for release of the vehicle on payment of appropriate fine was made with conviction of mind inasmuch as the original authority was directed to determine the quantum of fine by taking into account all the relevant considerations. Such a limited remand of the case can only be seen as the outcome of a judgment based on a comprehensive consideration of the facts and evidence of the case as well as the relevant provisions of law. It appears from the text and tenor of the present application that the appellant wants to say that there is an error of judgment in the Final Order of this Tribunal. But any error of judgment can be rectified only by the appellate court, and not by this Tribunal under Section 129B(2). 5. emsp In the result, the application is rejected.
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2003 (10) TMI 491 - CESTAT, MUMBAI
... ...
... ... ..... cture, then duty cannot be collected the second time. They also cite the following case laws in support of their claim - (1) Rubber Inds. (India) v. Collector of C. Ex. Bombay-I - 1996 (83) E.L.T. 116 (Tribunal) (2) CCE, Bombay-III v. Guest Keen Williams Ltd. - 1996 (63) ECR 330 (Tribunal) (3) CCE, Meerut v. HCL HP Ltd. - 1999 (112) E.L.T. 487 (Tribunal) These case laws allow refund of duty paid twice on goods returned in view of Rule 173L and Section 11B. We are of the view that the case of the appellants is squarely covered by these decisions and hence we are of the view that the appellants are entitled to the refund claimed by them. 3. emsp In view of our finding as above, we set aside the impugned order in appeal dtd. 12-3-1999 and reject the Department rsquo s appeal but allow the appeal of M/s. Cipla Ltd. with consequential benefit. Our order rejecting appeal No. E/2206/97 and allowing appeal No. E/2152/99 was announced in the court on the date of hearing on 28-10-2002.
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2003 (10) TMI 490 - CESTAT, MUMBAI
Rectification of mistake - Factual error - Cenvat/Modvat - Duty paying documents - Invoice - Cenvat/Modvat - Duty paying documents - Appeal to Appellate Tribunal - Grounds - Merits of case
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2003 (10) TMI 489 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... 16-3-93 passed by the Collector Central Excise, Mumbai-II was not challenged by the appellant before appropriate forum, till date. From the submissions of the appellant I find that there is no dispute against the subject adjudication order dated 16-3-93. The property of the appellant is attached as per due process of law under Rules 9 and 10 of Customs (Attachment of Property of Defaulters for Recovery of Government Dues) Rules, 1975 read with Not. No. 68/63-C.E. (N.T.) dated 4-5-63 for recovery of Govt. dues. Appellants contention that the property of other partners has not been attached cannot be the grounds for this appeal. rdquo 3. emsp Since there is no duty interest and or penalty to be determined in the proceedings impugned before me, there can be no order made of dispension of pre-deposit under the provision of Section 129E of the Customs Act, 1962. The present application is required to be rejected. Appeal to come up for hearing in normal course. Ordered accordingly.
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2003 (10) TMI 488 - CESTAT, MUMBAI
Confiscation ... ... ... ... ..... that goods were not manifested. Hence the emphasis of the words in sub-section (3) of Section 30 that amendment or supplement of a manifest is to be permitted if there is no fraudulent intention. This is to prevent cases in which cargo attempted to smuggle is sought to be included on the discovery of its existence by seeking an amendment to the manifest. Where therefore an application has been made and is pending for inclusion of an additional entry in the manifest, it would be premature to confiscate the goods by application of Clauses (f) and (g) of Section 111. The position would be different if no application had been made, or an application having been made were rejected. In the case before me, the applications were pending when the Commissioner passed his order. It is not the department rsquo s case that the applications had been rejected. There is therefore insufficient material to justify confiscation. 7. emsp The appeals are allowed and the impugned order set aside.
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2003 (10) TMI 487 - CESTAT, MUMBAI
EXIM - Value based advance licence ... ... ... ... ..... d either by the merchant manufacturer or the transferees of the licences, therefore non-compliance with the requirement in the notification regarding filing of declaration of non-availment of Modvat credit on inputs used in the manufacture of exported goods cannot result in denial of the benefit of the notification. Further the stand of the appellants that the export goods, namely, HDPE woven fabrics were exempt from Central Excise duty and therefore the question of availing of Modvat on inputs used in their manufacture did not arise, has not been controverted. In the absence of any evidence to show that input stage credit had been availed either by the appellants or by the transferees of the VBAL licences we hold that contravention of the relevant condition in Notification 203/92 has not been made out by the Revenue. We therefore set aside the impugned order in so far as it relates to the appellant, namely, by setting aside the penalty imposed upon them, and allow the appeal
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2003 (10) TMI 486 - CESTAT, NEW DELHI
... ...
... ... ..... ecently in the case of S. Kumars Ltd. v. CCE, Final Order dated 17-2-2003 2003 (153) E.L.T. 217 (Tri. - LB) wherein it has been observed that subsequent debit note will have no effect on the applicability of the doctrine of unjust enrichment to the claim of the manufacture when once he has passed on the incidence of duty. Even in a case of captive consumption, this doctrine of unjust enrichment had been held to be applicable by the Apex Court in the case of Union of India v. Solar Pesticides Ltd., 2000 (116) E.L.T. 401 (S.C.). The law laid down in this case has been also not taken note of by the Commissioner (Appeals) while deciding the matter. 5. emsp In view of the discussion made above, the impugned order is set aside and the matter is sent back to the Commissioner (Appeals) for fresh decision in the light of the law laid down in the above referred cases after affording an opportunity of hearing to the respondents. The appeal of the Revenue stands allowed by way of remand.
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2003 (10) TMI 485 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... ayer, learned DR draws our attention to the fact that a container was found to be booked by the applicants in Nhava Sheva and the container was available up to 15-9-2000 and this, according to him, would clearly establish that there was a clear attempt on the part of the applicants to export the goods, thus attracting the provisions of Section 113(i) of the Customs Act. He further submits that the non-cancellation of shipping bills in September, 2000 by the applicants would also show that they were attempting to export the goods. 5. emsp We have carefully considered the rival submissions and find prima facie force in the contention that the action of the applicants in loading of the goods for onward transmission can, at best, be stated to be a case of preparation, and not an attempt to export the goods so as to attract the rigour of Section 113(i). We therefore waive the pre-deposit of penalties imposed upon the applicants herein and stay recovery thereof pending the appeals.
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2003 (10) TMI 484 - CESTAT, MUMBAI
Classification ... ... ... ... ..... ls) followed an order passed by Commissioner (Appeals), Bombay classifying similar products under Heading 2404.90. 4. emsp It is contended on behalf of the Revenue that the tobacco dust which is used in the product is only unmanufactured tobacco and it should come within 2401.90. We do not find any merit in this contention. Tariff Entry 24.04 relates to other manufactured tobacco and manufactured tobacco substitute, homogenised and reconstituted tobacco extracts and essence. This Tariff Entry along with smoking mixtures, biris, chewing tobacco, snuff and their preparations takes in cut tobacco also. If cut tobacco can be treated as manufactured tobacco, we find no reason to hold that the product of the respondents manufactured out of tobacco dust by process of roasting, grinding etc. cannot be classified under 2404.90. It is seen that similar view had been taken in the orders passed by Commissioners (Appeals) in other appeals. In the light of the above, we dismiss the appeal.
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2003 (10) TMI 483 - CESTAT, NEW DELHI
Demand - Words and Phrases - “Quantity delivered” ... ... ... ... ..... uo and ldquo quantity consumed rdquo . The DR rsquo s submission that lsquo quantity delivered rsquo should be understood as quantity delivered at the factory does not appeal to me inasmuch as the Department is not competent to certify such a quantity. What they are competent to say is regarding the quantity of goods delivered across the Customs barrier. Therefore, going by the Consumption Certificate, I hold that the entire quantity delivered across the Customs barrier has been consumed in the induction furnace of the appellants. The relevant condition under the notification stands fulfilled. It is also pertinent to note, as rightly pointed out by the Counsel, that the Department has no case that any part of the imported quantity was diverted by the party in any other manner whatsoever. The case of the appellants indeed stands on a stronger footing than the case of National Organic Chemical Industries. In the result, the impugned order is set aside and the appeal is allowed.
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2003 (10) TMI 482 - CESTAT, NEW DELHI
Demand - Limitation - Suppression ... ... ... ... ..... rovisions of the Act or Rules with intent to evade payment of duty. The appellants had brought on record the fact that the production and clearance of misrolls, without payment of duty, was brought to the notice of the Department and they had filed the R.T. 12 return for the month of September, 1997 and subsequently, they had filed classification declaration under their letter dated 4-8-1997 in which they had clearly claimed the benefit of Notification No. 67/95-C.E. in respect of misrolls captively consumed. In the light of these facts, it cannot be alleged by the Department that the fact of using misrolls captively in the manufacture of bars and rods, has not been brought to the notice of the Department. Accordingly, the extended period of limitation is not invocable. As the entire demand of duty is beyond the normal period of one year specified in Section 11A(1) of the Act, we set aside the impugned order and allow the appeal only on the aspect of demand being time-barred.
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2003 (10) TMI 481 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Discrimination - Contradictory orders in similar cases ... ... ... ... ..... s method had been upheld by the Commissioner of Central Excise, Aurangabad in his order No. BPS/(210)/2003 dated 1-8-2003, while disposing of appeals filed by the Department before him. The applicant contends that the impugned order in his case is a departure from the above cited decision. He pleaded that the impugned order is bad in law in view of the ratio of the above cited decision of the Commissioner (Appeals). He holds that he has a strong prima facie case in his favour. Pre-deposit of duty demanded causes him undue hardship. 4. emsp We have heard both sides. 5. emsp It appears the Department is adopting diametrically opposite views where the facts and circumstances are the same. The issue whether Rule 57CC is applicable when exempted goods are captively consumed and not sold, is interpreted in a manner that discriminates one assessee from another when both are similarly placed. We therefore hold that a strong prima facie case is made out. 6. emsp Pre-deposit is waived.
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2003 (10) TMI 480 - CESTAT, MUMBAI
Appeal to Commissioner (Appeals) - Maintainability of ... ... ... ... ..... ed, no such remedy is available. The learned DR brought to our notice a decision of the Tribunal in Collector of C. Ex., Raipur v. Venkateswar Ispat P. Ltd. - 2002 (147) E.L.T. 1135 wherein it has been held that the approval of classification list is a quasi judicial action and appeal lies to the Commissioner (Appeals). We are not able to accept the contention raised by the respondent that an order passed by the Assistant Commissioner in the matter of approval of classification list will be a quasi judicial order as far as the assessee is concerned and is only an administrative order for the Revenue. According to us, it is a quasi judicial order and an application under Section 35E will be maintainable at the instance of the Revenue. We, therefore, set aside the order impugned and remand the matter to the Commissioner (Appeals) for consideration of appeal on merits. The Commissioner (A) will pass final orders within three months from the date of receipt of copy of this order.
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2003 (10) TMI 479 - CESTAT, MUMBAI
Appeal - Restoration of ... ... ... ... ..... at attempts they have been able to locate the relevant Order-in-Original. 3. emsp We have heard Shri H.C. Daruwalla, ld. Advocate on behalf of the appellants. Shri K.V. Bablani, Jt. CDR appeared on behalf of the Revenue and he opposed the prayer for restoration. 4. emsp After hearing both sides and perusal of the records, we find that since the appellant had filed a photocopy of the said order-in-original and they are willing to file the Original Order, we find it reasonable and also in the interest of justice to allow the said ROA. Accordingly, the restoration application is allowed and the case is fixed for regular hearing on 31-10-2003.
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2003 (10) TMI 478 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - EOU - Goods cleared to DTA - Debonding ... ... ... ... ..... 13-8-2003 in W.P No. 5884 of 2002 directing the guarantee to be in force and subject to further orders that may be passed by the Tribunal in the appeal against the present impugned order (although the guarantee has not been furnished to cover the demands raised in the impugned order). We are taking this factor into account as the High Court has directed that the Bank Guarantee shall remain in force until further orders of the Tribunal in the above appeal. Further, goods valued at approximately Rs. 37.60 crores i.e. optical fibres seized from DTA unit are in the custody of the department. In view of the above, the interest of the Revenue is prima facie adequately safeguarded. We, therefore, waive the pre-deposit of duties and penalties and stay recovery thereof pending the appeals without expressing any prima facie opinion on merits of the demands. 4. emsp As the appeals involve heavy stakes and important issues, we fix the appeals for final hearing on 19-1-2004 and 20-1-2004.
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